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THE RELATION OF THE JUDICIARY 
TO THE CONSTITUTION 



■N b 



The 

Relation of the Judiciary to 

the Constitution 

BY 

WILLIAM M. MEIGS 

Author of "The Life of John C. Calhoun," "The Life of Thomas H. 

Benton," "The Life of Charles Jared Ingersoll," "The Growth 

of the Constitution," and Other Works 




THE NEALE PUBLISHING COMPANY 

440 FOURTH AVENUE, NEW YORK 

M CMXIX 



^ 



AT 



Copyright, 19 19, by 
William M. Meigs 



JAN -2 I92Q 

y f 

<Q)Ci.A56l236 



TABLE OF CONTENTS 

CHAPTER PAGE 

Introduction 7 

I. The British Colonies in North America . 15 

II. The Public Beliefs of Our Colonial 

Days 30 

III. Fundamental Law and Coke's Doctrine 

During Revolutionary Days. Con- 
flicting Legislation of the Period and 
Its Effect on Public Opinion ... 48 

IV. Our First Actual Judicial Decisions 

That Laws Violated the Constitution 
and Were Hence to be Held Void. 
Recognition of this Doctrine. Its 
Rapid Spread 59 

V. Rutgers v. Waddington. Other Like 
Cases In State Courts Holding Void 
State Statutes In Conflict With Fed- 
eral Action. Congress Urges the 
General Use of the Judicial Depart- 
ment to Annul Such Laws of the 
States 80 

VI. Review. Bayard v. Singleton. . . . ioi 

VII. The Constitutional Convention of 1787. 
Its Adoption of the Judicial Method 
of Voiding Unconstitutional Laws . 124 



TABLE OF CONTENTS 

CHAPTER PAGE 

VIII. The Constitution Before the People, 

and in the Ratifying Conventions . . 158 

IX. Rapid Spread of the Doctrine After 1789 170 

X. The Degree of Conclusiveness Attach- 
ing to Judicial Decisions, Early Be- 
liefs on the Subject. The Future . 208 

Index ........... 241 



INTRODUCTION 

The subject of the present book has for many years 
been of interest to the writer. Long ago, while still 
a young lawyer, I was in some way drawn to a study 
of the judiciary in relation to the Constitution; and 
under the same title as that which now, late in life, 
I am placing upon this book, I wrote the second of a 
series of law articles^ to the writing of which ill-health 
and a dearth of practice had directed me. 

I may without vanity say that, prior to the publica- 
tion of the article in question in 1885, 1 there was but 
the most insufficient treatment of the subject to be 
found. Kent's pages, and those of Story, Cooley, and 
the other writers, would have been searched in vain for 
any valid sketch of its history, either in the Federal 
Convention or in the early cases in which it was ap- 
plied or hinted at. 

As my studies preparatory to the article went on at 
the time in question, I was surprised at the number of 
cases in point which I found ; but it must not be sup- 
posed that these were easily unearthed from the dust 
of a century. The indices to the old and oddly printed 
reports of that long-ago day were of no assistance. 
There was, then, never, or rarely, an index-heading of 

1 American Law Review (March- April, 1885), Vol. XIX, pp. 
175-203. 

7 



8 INTRODUCTION 

"Constitution," or "Constitutional," or any such ready 
road by which to find the cases I sought; and decisions 
that the veriest tyro of an index-maker would to-day 
refer to some such easy pigeon-hole, were then sure to 
be found somewhere adrift under "Ejectment," "Dis- 
seizin," or perhaps "Jury." The only possible way to 
find them was to go carefully over every item of the 
"Index," with the aid, too, of frequent reference to the 
text of the book in hand. I well remember so toiling 
through the volumes, — not very many, — of law reports 
of our pre- and early Constitutional period in all the 
old thirteen States and some of the later admitted ones, 
and unearthing now and then a case in which the men 
of that day had sketched out, though they saw but 
dimly, a doctrine which has been of vast influence upon 
our history. And then there followed for me the inter- 
est of seeking further light upon the particular instance 
from other sources. Not so many cases in all were 
brought to light by my study, but they were enough to 
show that Marbury v. Madison was not, as so many 
had thought it was, the fons et origo of our very re- 
markable judicial power. 

My article once published, it became, of course, at 
once public property, and its stones were ere long 
taken down and used (so Huxley, I think, put it) as 
the rubble for roads of study by others. It thus served 
a good purpose, and some cases were added by stu- 
dents, or those I had found were further elucidated, 
while for a time active interest rather ceased for me. 
This, however, was again aroused when the partially 
completed work of Brinton Coxe on "Judicial Power 



INTRODUCTION 9 

and Unconstitutional Legislation" was put into my 
hands after his death, and at his request, for the pur- 
pose of my editing it. He had talked with me on the 
general subject, while I soon learned a deal from his 
pages; among other things that the American Doc- 
trine was by no means the absolutely new departure in 
governmental science that my rather narrow path of 
study had led me to think it. Not many more years, 
then, went by before I learned that an onslaught was 
being made by some writers on our American beliefs 
and actions on this subject of more than a century. 
I answered (as did also others) these attacks in an 
article of 1906, 2 and in another of 1913; 3 but it is not 
for me to say with what success in point of reason. 

Certainly, however, with none in point of effect, for 
our critics have gone on undeterred, in spite of all the 
very plain and palpable facts of our history. Their 
numbers have, moreover, beyond doubt increased. 
Those who consider and call themselves "Progres- 
sives" have, many of them, taken up the hue and cry, 
and to-day our ancient doctrine is traversed and cer- 
tainly in danger of being rejected, or perhaps confessed 
and then avoided through some by-way. It is one 
more instance of that itch for mere change which is 
so conspicuously to be seen among our public men of 
to-day. 

Some of the protagonists of the discovery that our 
American Doctrine was a Great Usurpation have, 
moreover, had the satisfaction in recent years of see- 

2 American Law Review (March- April, 1885), Vol. XL. pp. 
641-670. 
• Ibid., Vol. XLVII, pp. 683-696. 



io INTRODUCTION 

ing their diatribes printed in one way or another at 
public expense, or even as part of the Congressional 
Record, then franked far and wide, to influence public 
opinion, while we conservatives of the Great Mob of 
our American one hundred millions only occasionally 
speak out, and then have no Public Printer back of us. 
It shows, again, how true is the belief that a clamorous 
minority will often drown by its vociferations the 
sober opinion of the real majority. And we who be- 
lieve in this part of our inherited and long-tried system 
must not deceive ourselves. There is the gravest dan- 
ger that this noisy minority will lead the country 
largely, even entirely, to abandon its canons and laws 
and to launch out upon evil ways, much to its detri- 
ment, precisely as a street mob will often follow 
courses far worse than the average desire of its 
members. 

It is the conviction of this danger that has led me 
once more to take up the subject of Judicial Power. 
To-day many have treated the various phases of the 
origin of the American Doctrine, and a vast deal of 
matter bearing on its history and nature has been 
gathered together by various writers; but I feel that 
the subject will bear still another treatment. This 
should, in my opinion, be altogether historical in 
method, and some phases of the very early growth of 
that Doctrine are happily now far more accessible than 
was the case even less than a decade ago. 

Early colonial doings prepared the ground, and the 
seed then planted was already sprouting at and before 
the Federal Convention, and then quickly grew into 



INTRODUCTION n 

our American Doctrine almost as necessarily as the 
sowing of wheat results in the growth of the chief food 
of the world. It was an evolution, slowly made step by 
step, and long with little knowledge of whither it 
would lead, precisely as is the case with all such evolu- 
tions in public affairs, but we can see to-day (if we do 
not perversely shut our eyes) that the result was about 
as foreordained from the circumstances as is the pos- 
session of its wonderful power of scent to a pure- 
blooded pointer-puppy. In my opinion, the evidence 
accessible to-day is a demonstration, only less certain 
than those of astronomy and mathematics, that the 
Judiciary was plainly pointed out by our history for 
the vast function it has exercised, and that it was ex- 
pected and intended, both by the Federal Convention 
and the opinion of the publicists of the day, to exercise 
that function. 

Shall the American people abandon this principle at 
the very time when much of it is being adopted as 
desirable by many other growing peoples, and when 
the problems of government sure to follow on the vast 
war of to-day seem to promise more federations, — 
perhaps infinitely greater than any now known, — 
which will need some such system to hold the members 
quietly in control under ordinary circumstances? It 
is amazing how far and wide throughout the world our 
American Doctrine has spread; the reason for its dis- 
semination being surely because it filled a need and 
offered a well-tried means, instead of being some sup- 
posed new panacea, which would almost certainly fol- 



12 INTRODUCTION 

low the course of most such cures, and break down in 
a few years. 

Not only have Canada and Australia followed our 
lead in this matter, but the same has been the case 
in the still newer South African Republic, in New 
Zealand, and in Argentina, Bolivia, Colombia, Cuba, 
Mexico, Rumania and Venezuela, as well as in Fin- 
land as against a Russian law, while the very "Mother 
of Parliaments," after having watched the working 
of the system for several decades in one of hen older 
offspring, has not only approved of it more recently 
for younger ones, but is now thinking of adopting it 
for the government of Great Britain herself, in the 
new relations with Ireland under the proposed Home 
Rule Bill. 4 France, too, we are told, is tending in the 
same direction. "In recent years," writes Prof. Gar- 
ner of the University of Illinois, "there has been an 
interesting and very remarkable extension of judicial 
control over the administrative authorities in France," 
and this growth seems not to be at all confined to mat- 
ters of administration alone but to extend to all 
branches of law, as well as to have the approval of 
many students of jurisprudence. 5 Verily, here is a 

4 1 considered shortly the instances of Canada and Australia 
in 1906 in my article "Some Recent Attacks," etc., in 40 Ameri- 
can Law Review, pp. 667, 668. See the same treated more fully 
in "Report of the Committee on the Duty of Courts to Refuse to 
Execute Statutes in Contravention of the Fundamental Law," 
presented at the 38th Annual Meeting of the New York State 
Bar Association, held at Buffalo, January 22 and 23, 1915, pp. 
34-43. The other instances are taken from ibid., pp. 43-50. 

5 James W. Garner's "Judicial Control of Administrative and 
Legislative Acts in France," in American Political Science Re- 
view, Vol. IX, pp. 637-665. Prof. Garner writes that the question 



INTRODUCTION 13 

formidable array of practical endorsement to be some- 
how explained away by the critics of our American 
System. 

And yet, in the face of all this, we are noisily urged 
by the "Progressives" to abandon our long-tried sys- 
tem, widely adopted though it has been by other peo- 
ples, and to drift off — into What? There are undoubt- 
edly evils in our existing system, and the courts have 
made many an absurd and harmful decision; but the 
fire is hot as well as the frying-pan. Let Congress 
(and the State Legislatures?) have the right to pass 
what law it will, or what law its majority may please 
to think constitutional, and where shall we find our- 
selves? With all our roots entwined around the exist- 
ence of the right of Judicial Review, how can Congress, 
untrammeled by that long-inherited principle, be trust- 
ed? Its members, and all the land, have too long de- 
pended on the courts to right the wrongs, — unwittingly, 
hastily, or in passion, — perpetrated upon the rights of 
a minority; and it is not in human nature that they 
should now cast off the customs grown up in a long 
course of years, and quickly become Constitutional stu- 
dents, or scrupulously careful of the rights of others. 

Grave danger of radical and revolutionary courses 
lurk hidden in any such change; and we had best be 
very slow to make it, until we have carefully studied 
the matter in all its collateral consequences, or we may 

has in recent years provoked widespread discussion, and "the 
American doctrine has been defended by many jurists/' of whom 
he names twelve. "Prof. Duguit," he adds, "thinks it is only a 
question of time when the American practice will be introduced 
in France." See pp. 661 and 664. 



14 INTRODUCTION 

well once more find ourselves in the predicament into 
which recent methods have so often led us; that of 
hastily adopting a half -thought-out new law and then 
soon awaking to the consciousness that the new con- 
dition is worse than the old one, and of longing to 
repeal the supposed sure-cure. 

William M. Meigs. 
Philadelphia. 



The Relation of the Judiciary 
to the Constitution 

CHAPTER I 

THE BRITISH COLONIES IN NORTH AMERICA 

The founding of the British Colonies in America 
was an event of vast importance to the world, and to 
the present study was of course absolutely vital. Those 
hardy immigrants to the wilds of the New World 
sprang from the loins of a people who had already 
laid the foundations of Popular Government. The 
colonists bore with them this great germinal principle, 
and their circumstances in the new home tended 
strongly to foster its growth. No paternal system at 
home guided and controlled their steps in America, 
nor was an organized system of society brought with 
them. There were of course leaders, who were looked 
up to and had far more power than the poor and lowly, 
but in the main their society was based on a democracy 
of a very advanced type for that day. 

They had not only to conquer nature but also to es- 
tablish a new government and a new social system. 

15 



16 THE RELATION OF THE 

Those that they had left could not be adopted, for the 
elements to which to attach them were quite wanting, 
and the colonists had to, — as they did, — reject some 
portions of the old, while at the same time they 
molded many other parts to their new surroundings. 
The different settlements varied in their solutions of 
these problems, but in every one popular government 
found a leading place. The individual bulked large. 
Add to this the often-aiding hand of the home govern- 
ment, which by no means let the colonies go off en- 
tirely on their own responsibility,— a hand that meant 
to guard them from themselves, as well as to exploit 
them and make them profitable to the home country, — 
and we have plenty of material with which to develop 
something very new. 

It was rather a haphazard method, very wanting in 
unity of direction, as was indeed the system of the 
home-country" as well. Both systems were governments 
of compromise. In neither was the Executive very 
strong, and that preparedness, of which we hear so 
much nowadays was conspicuous only by its absence. 

In the early days in this country, the far more pre- 
pared French, guided by an Executive which was the 
State, owned in reality the Continent and ought to 
have forever remained its master ; but despite the fact 
that they at first concentrated their energies far more 
quickly than the English, and long promised to control 
everything, the saving leaven of democracy gave the 
victory to the latter. That individualism, which is a 
part of democracy and which taught the Englishman 
and his colonist to take care of himself under all cir- 



JUDICIARY TO THE CONSTITUTION 17 

cumstances, was an interstitial force binding all the 
inhabitants together and bringing into play the utmost 
power of every single individual composing the society, 
much like the atomic force of matter, and it soon swept 
to ruin all the power of the French Executive and all 
its preparedness. 

But of this only these few words in passing, in 
order to direct attention to some of the ingredients 
which were contained in the caldron in which was to 
originate along the Atlantic Coast of North Amer- 
ica,— always from the old materials slowly shaped to 
our needs, with many a turbulent struggle, yet with no 
little conservatism, — much that was new in the admin- 
istration of human affairs. 

It has been said that the British did not mean to let 
their colonies drift off on their own course, but rather 
to use them for the profit of the home-country, in ac- 
cordance with the ideas of the time. They well knew 
that raw colonists would pass many a callow law 
and adopt methods by no means wanted at home ; and 
from the start the home government aimed to prevent 
this, in time developing a system for the purpose, 
which was, beyond doubt, of great influence in leading 
to that judicial power with which this book has to do. 

Hence, in conferring, as English principles de- 
manded should be done, the right to create something 
like a Parliament, the several colonies were by no 
means given a general power to legislate, but were in 
every case limited to the passing of laws consonant 
with their charter, or in accordance, as near as might 
be, with the laws of England ; and means, which were 



i8 THE RELATION OF THE 

in the main very effective, were found to enforce these 
imitations, especially as the colonies grew in popula- 
tion and power, and hence in the tendency to break 
away from restraints. The colonists were a stiff- 
necked people, and in numbers of cases managed to 
carry out their own wishes; but the people in the 
old home were also stiff-necked, and they held the 
colonial legislatures in many instances pretty closely 
to the limitations to which they had been subjected. 

One of the methods of attaining this end was through 
the Privy Council, which ere long appointed a com- 
mittee to examine the laws of the colonies and to 
report upon their legality. Not all the colonies were 
required, as Pennsylvania was, to submit their laws 
to the King in Council ; but the Crown found ways by 
those indirect methods which often play a greater part 
in development than do positive provisions, to induce 
every one of our thirteen colonies to submit its laws to 
this scrutiny. 

The Committee of the Privy Council, and later the 
Lords of Trade and Plantations and the Board of 
Trade, submitted the laws so sent to a most careful 
examination as to their legality, — -or constitutionali- 
ty, for this very word of modern times was already 
occasionally used. The laws were referred first to 
their counsel, — long regularly employed for this pur- 
pose, — and he scrutinized the alleged statute with that 
meticulous search for fault, which is so characteristic 
of the profession of the lawyer. If it was reported 
to violate the provisions of the charter in any way, or 
to concern a subject on which legislation was not au- 



JUDICIARY TO THE CONSTITUTION 19 

thorized, or if it was contrary to some particular Act 
of Parliament, or was not in the main in accordance 
with the laws of England, the Committee of the Coun- 
cil or the Board of Trade would recommend its dis- 
allowance, and of course this recommendation would 
be followed by the King in Council. Full many a 
popular pet of legislation in various colonies came to 
an untimely end by this means; and the whole subject 
was one of much interest in the colonies, both to the 
mass of the people and to leading public men. 

Quite a system grew up in the matter. The agents 
maintained in Great Britain by many of the colonies 
had for a main duty to see that the laws passed were 
not disallowed, and they always followed their course 
and appeared to argue the question of legality. At times 
some one having an interest against a law would call 
the attention of the Board of Trade, or of the King in 
Council, to an alleged want of legality in a particular 
statute; and then hearings would be had, arguments 
presented on both sides, and perhaps evidence taken, 
until the Board, with all these aids, should make its 
recommendation to the King. Those who complained 
against laws were very often merchants; and the 
reader can make a shrewd guess as to the character 
of many laws such as merchants would complain of. 
The easy and very prompt collection of debts was to 
their interest, while the colonists wanted to protect 
themselves from being ground too hard, and to allow 
debtors plenty of time. Various forms of bankruptcy 
laws, legal tender acts, stay-laws, statutes of limita- 
tion, provisions as to usury, — these were all favorites 



20 THE RELATION OF THE 

of the 'colonists; while the British merchant seemed 
often to want for himself the last pound of flesh of 
the unfortunate debtor. 1 It is a struggle doubtless as 
old as trading itself. 

In late years several examinations have been made 
of English records relating to the practice and general 
methods employed in the scrutiny of colonial legisla- 
tion by the King in Council. Of these, two very recent 
ones 2 are particularly extensive and careful, and have 
been relied upon for the purposes of this book. The 
results reached by both investigators are in general 
alike, and the thanks of American students are due 
to these two gentlemen for the long weeks of hard 
study they have devoted to their task in a foreign 
country and far from home. 

The colonial essays at legislation were indeed sub- 
ject to the closest examination, — and they needed it. 
Often crude beyond belief, — with one department of 
government making the widest incursions into the field 
of another, and with at times far too little regard paid 
to vested rights and even to fundamental principles 
of liberty, — those early legislative assemblies did cer- 
tainly need a guiding hand, even though it be the case 
that they were at times far too much cabin'd, cribb'd, 
confin'd, by their guardian and stepmother in her 
own interest. They were as yet by no means fit for 

1 Oliver Morton Dickerson's "American Colonial Government," 
pp. 252, 253. 

2 Oliver Morton Dickerson, "American Colonial Government," 
"The Review of American Colonial Legislation by the King in 
Council," by Elmer Beecher Russell (Columbia University Stud- 
ies in History, Economics and Public Law, Vol. LXIV, Num- 
ber 2). 



JUDICIARY TO THE CONSTITUTION 21 

what has been well called "the responsible business of 
legislation/' 

The Board of Trade had regular counsel, to whom 
the laws were referred, and we are told by one of 
these recent students that the question most frequently 
asked by the Board of their counsel was as to 

the legality, or what might now be termed the constitu- 
tionality of legislation. Had the colonial legislature ex- 
ceeded its power and authority in passing the law ? Were 
its provisions unwarranted under the terms of the pro- 
vincial charter, or in conflict with an Act of Parliament? 
The Board inquired, for example, whether two acts of 
North Carolina were proper consistently with the just 
rights of the inhabitants and the constitution of said 
Province? And three private acts granting decrees of 
divorce, they referred to the attorney and solicitor upon 
a matter of doubt whether the legislature of the Province 
of Massachusetts Bay or any other Colony has a power 
of passing Laws of this nature, and consequently whether 
these laws are not of themselves null and void. And, to 
give one example among many, a naturalization law of 
New Jersey was sent to the solicitor with an inquiry, as 
to how far it was consistent with the act of Parliament 
of "12 Charles II ... or other acts of Parliament." 3 

Again, we are told that 

In numerous instances, the Council declared laws in- 
consistent with the terms of a provincial charter, and 
therefore void. Several objectionable Acts passed by 
the proprietary governments of the Carolinas were an- 
nulled upon the broad ground that being repugnant to 

8 Russell's "Review of Colonial Legislation," pp. 63, 64. 



22 THE RELATION OF THE 

the laws of England, they constituted a violation of the 
law-making power conferred by the charter. . . . Mas- 
sachusetts lost several laws which were deemed incon- 
sistent with her charter. In these cases, however, dis- 
allowance was based upon more specific grounds. . . . 
Jackson, who, as king's counsel, loved to play with large 
abstractions, frequently based his criticism upon the 
broad ground that the law constituted a violation of the 
British constitution, or, in other words, that it failed to 
maintain the English standard of legal justice. 4 

A law of North Carolina, enacting that no one but 
barristers of five years in one of the Inns of Court 
in England should become a judge, was disallowed, 
because "this was deemed 'an unconstitutional restraint 
upon the power of appointing judges/ " 5 And a law 
in the Bahamas prohibiting any appeal to the Privy 
Council "was deemed 'altogether inconsistent with the 
constitution of the Colony/ " 6 

The general result is said to have been that 

in such policies as the crown chose to maintain consist- 
ently and without compromise the colonies learned to 
acquiesce; for against a disallowance followed by an in- 
struction to the Governor forbidding his assent to any 
future act of like purport, the popular party, as a rule, 
could make little or no headway. . . . By reason of 
many annulments the colonists learned to respect the per- 
sonal rights and private property of individuals and to 

4 Russell's "Review of Colonial Legislation," pp. 147, 150. 
6 Ibid., p. 189. 
8 Ibid., p. 191. 



JUDICIARY TO THE CONSTITUTION 23 

abide by the forms and larger precedents of English 
law. 7 

A large number of colonial laws came to an untimely 
end by virtue of this sifting process. Of about 8,500 
acts submitted by the continental colonies, some 469 
(or 5.5 per cent) were disallowed. The percentage 
varied widely in different colonies, but was in general 
so large as to bring the whole subject to popular at- 
tention, as will shortly be shown from the records of 
the day. 8 

There was another means by which the home-coun- 
try held the far-distant colonies to methods in general 
consonance with her own, and of which she approved. 
The system of appeals from colonial judicial decisions 
to the same Privy Council, which (as has just been 
shown) disallowed statutes, is referred to. These ap- 
peals were, of course, not of daily occurrence, but they 
were in quite sufficient number to make a deep impres- 
sion. Between 1680 and 1780, "the most significant 
period of the operation of the appellate system/' we 
are told that no less than 265 cases reached the Privy 
Council from the continental colonies of England. 
Seventy-eight of these cases came from Rhode Island, 
53 from Virginia, 44 from Massachusetts, 21 from 
New York, 13 from Pennsylvania, 12 each from New 
Jersey and New Hampshire, and 9 from Connecticut. 
There were 76 reversals. 9 

7 Ibid., pp. 204, 205. 

8 Ibid., p. 221, or Dickerson's "Colonial Government," p. 227. 
See infra, pp. 26-29. 

9 "Colonial Appeals to the Privy Council," by Arthur Meier 
Schlesinger, Political Science Quarterly, Vol. XXVIII, p. 446. 



24 THE RELATION OF THE 

This judicial method of control was, of course, to 
the scientific lawyer quite different from the executive 
disallowance of laws already referred to, but to the lay- 
man, uneducated in the mysteries of law and politics, 
the difference was far from plain. To the popular 
mind, the two methods must have seemed much the 
same, and each resulted in the undoing of some policy 
in public affairs that the colony concerned had enacted. 
Even in modern days learned historians differ upon 
the question whether some particular instance enacted 
not far from two hundred years ago falls into the one 
class or the other. 10 

The whole system which we have been considering, 
and particularly the veto which the Privy Council often 
put on laws passed and most strongly desired in the 
colonies, was very vital to the dwellers in the New 
World. Bitter contests arose in some cases over it, and 
in numerous instances the hard-headed colonists strug- 
gled in many ways, after the disallowance, to secure 
their own will and get into legal form on the statute- 
books laws and principles which the mass of their 
people eagerly desired. Laws, which had been once 
disallowed, were often reenacted, perhaps with some 
little modification so as to look less like defiance, and 
this would even be done several times in succession; 
thereby in some instances the law would be maintained 

Cf. "Appeals from Colonial Courts to the King in Council, with 
Especial Reference to Rhode Island," by Harold D. Haseltine, 
in "Annual Report of the American Hist. Assn.," 1894, p. 337. 
10 Coxe's "Judicial Power and Unconstitutional Legislation," 
p. 212, holds the action to have been partly legislative and partly 
judicial. 



JUDICIARY TO THE CONSTITUTION 25 

in effect during the long period that often elapsed 
between its colonial enactment and the arrival of news 
that it had been again disallowed. 11 

There were other devices or accidents by which the 
colonies had occasionally a measure of success. Some- 
times, notice of disallowance failed to reach the colo- 
nial authorities, or possibly the latter intentionally 
neglected to enter the disallowance upon the law books. 
Thus Gov. Cadwallader Colden wrote to the Board in 
1 76 1 that he was 

told that several acts in Basket's edition of the acts of 
New York in 1718 are noted to be repealed, of which 
not the least evidence appears anywhere in the Province. 
. . . I make no doubt the judges continue to proceed 
upon them as of force. 

A Virginia law, which had been disallowed, was in 
reality carried out for nearly thirty years. One in 
New Hampshire had a still longer unauthorized ex- 
istence of over half a century; and the repeal of a 
Massachusetts law "establishing the township of Dan- 
vers" was for one reason or another never observed 
in the colony. 12 

Many of these difficulties and strange results were 
doubtless owing to the slowness of communication in 
that day. It is not easy for us to realize how utterly 
unreliable this was, but there was, for instance, no 
regular mail service of any kind to or from the colonies 

11 Russell's "Review of Colonial Legislation," pp. 210-212. 
** Ibid., pp. 212, 213. "New York Colonial Documents," Vol. 
VII, pp. 454, 455. 



26 THE RELATION OF THE 

until 1755. Letters from North Carolina, we are 
told, went usually by way of Virginia, and letters for 
Virginia frequently came out by way of New York. 
Even the colonies having direct communication with 
England were not much better off, for vessels came in 
quite unannounced and went off whenever ready. 

In 1754 the Board wrote the Governor of North 
Carolina that it had not heard from him for three 
years; and he answered a year later that he was sur- 
prised at their communication, which had just reached 
him, and added that he had been a regular correspon- 
dent. His letters may have been lost, or perhaps he was 
lying; but other communications of his seem to show 
that two years and a half were required at times for 
a letter to cross the ocean, and that letters to him often 
passed from hand to hand all the way across Virginia 
and North Cafolina. Those for England had often to 
be entrusted to the captain of any sailing vessel, bound 
for another port, and he would there have to transfer 
them to some captain, by whom they might finally 
reach England. And even in the home-country there 
were great delays, and letters occasionally lay for long 
periods at the Custom House. 13 We need not wonder 
that the consequent delays were such as to lead to the 
most incongruous results. 

The instances, which have been cited, of laws dis- 
allowed and of reversals of judicial decrees of the 
colonies, though they are far from numerous, indi- 
cate plainly enough that the main principles on which 
13 Dickerson's "American Colonial Government," pp. I33-I37- 



JUDICIARY TO THE CONSTITUTION 27 

they rested were of vital interest to the colonists, and 
by no means known only to public men. Other indica- 
tions, too, tell the same story, and show that the disal- 
lowance, and the setting aside of laws by the distant 
power across the seas, entered into the daily life of 
the colonists, and was widely known and understood 
among the masses of the people. Thus, letters from 
some Governors are extant, telling the Board of 
Trade that the disallowance of a popular law had 
excited considerable ill-feeling against the merchant- 
class, which had been active in breaking down the 
law in question; and, again, governors' letters, and 
even protests from the assemblies, show restiveness 
and resentment arising from the loss of some colonial 
law eagerly desired by popular opinion. In at least 
one instance, a riot resulted from the disallowance. 14 

The fear that laws might meet with this mishap 
was, moreover, constantly before colonial legislators; 
and I think it is well known that the advocates of spe- 
cial statutes were often warned in debate that the 
proposed measure was beyond the powers conferred 
by their charter, and would, if enacted, be held void 
for this reason. At least, the legislatures had the 
fear of such a result ever before their eyes, and 
took means to avoid it. In Pennsylvania, for instance, 
where a period of five years was allowed for the 
submission of laws to the King, the legislators would 
pass a law limited as to its duration to a shorter period, 
and would then, about the time of its expiration, re- 

14 Russell's "Review of Colonial Legislation," pp. JJ, 221. 



28 THE RELATION OF THE 

enact it. Sometimes they were even bolder and would 
openly reenact a disallowed law, in at least much the 
same words. 15 

One more proof of the wide knowledge of all this 
among the people comes from a much later source. 
The Declaration of Independence was a wonderful 
paper and full of stirring thoughts, but it was also 
meant as an appeal to the feelings and prejudices of 
the masses. The lawyers, who drew and adopted it, 
omitted few elements which would tend to add to its 
popularity, and in the fact that no less than eight of 
its counts against the Crown were based on the dis- 
allowance of statutes, claimed to be essentially needed 
by the colonies, may doubtless be found one more con- 
clusive proof that the disallowance of statutes by the 
Crown in Council, was in its day a matter of vital 
moment to thfc colonists and well-known to the vast 
majority of those who had any knowledge whatsoever 
of public affairs. 

The colonists came insensibly and quite inevitably 
to feel in their daily life, that apparent laws passed in 
strict accordance with all the forms by their legisla- 
ture, and often after long popular agitation, might 
turn out to be no laws at all but void, because not 
authorized to be passed under the terms of a funda- 
mental law of higher authority. To them, all their 
legislatures were closely restricted and could not legally 
(or, as we now say, "constitutionally") violate the 

15 "Chronicles of Pennsylvania, 1688- 1748," by Charles P. Keith, 
Vol. I, pp. 154, 155. 



JUDICIARY TO THE CONSTITUTION 29 

limitations of the instrument under which they existed. 
If the effort to do so were made, another agency- 
would solemnly annul the statute passed and declare 
it void. 



CHAPTER II 

THE PUBLIC BELIEFS OF OUR COLONIAL DAYS 

The grooves or ruts of thought of various ages of 
the world differ widely, and it is a very great error 
to cast back modern beliefs and try to read by their 
light the civilization and methods of a past time. 
The frame of thought, the very language in which 
we talk of government or any other agency, has a 
vital influence upon our beliefs. The theory of man 
in a state of nature, which had such vogue after 
Rousseau's time, was doubtless from one point of 
view nonsense* — for no such state ever did or could 
exist, — but it had none the less a potent influence on 
the beliefs of humanity, and aided greatly to spread 
afar a belief in the Rights of Man. That Democracy 
for which the world is now struggling and the great 
humanitarian spirit of recent times owe it a deep 
debt. 

The Age of the American Colonies was far from 
looking upon governmental matters and theories as 
we do to-day. The idea of three departments of 
government, so clearly separated as we now think 
them, was not yet accepted as an axiom. The funda- 
mental basis, moreover, on which legislation must rest, 
was looked upon from a very different standpoint 

30 



JUDICIARY AND CONSTITUTION 31 

from that which we now occupy. Probably, the Puri- 
tan, the Quaker, and the more fundamentally aristo- 
cratic Southern colonists, would all have been equally 
unable to comprehend a view which denies the neces- 
sity and reality of the distinction between mala in se 
and mala prohibita. The theocratic or theological in- 
fluence of the times was enormous. 

In some of the New England colonies, the control- 
ling elements were for a time exclusively theologians, 
who even announced that human laws were unneces- 
sary, as the Bible furnished a complete guide to human 
action. Other elements of like beliefs were floating 
around, too, in that day. The doctrine of funda- 
mental princip 1 es implanted by God, which had been 
held in the Middle Ages, had not yet died out, and 
perhaps it was not for that matter so very different 
from the famous dictum of Coke, about to be men- 
tioned, or, again, from the views enforced by our own 
courts to-day, when declining to carry out a law which 
they look upon as in violation of great, but rather 
intangible, primordial principles of liberty. These 
latter are now to some extent crystallized in the gen- 
eral phrases of the Fourteenth Amendment. 

One very important idea of that time must be fur 
ther examined. Coke's dictum in Bonham's case, — 
that the common law doth control Acts of Parliament 
and declare them void, when against common right 
and reason, — is referred to. This ruling of the 
mighty common lawyer received some scattering con- 
firmation in a few early English cases, and has even 



32 THE RELATION OF THE 

found an endorsement to-day, 1 but seems to be en- 
tirely unmaintainable. The cases which give the doc- 
trine apparent support are in reality but ones in which 
the court did what any court will and ought to do: 
seek to interpret a statute in such a way that no absurd 
or grossly unjust result shall flow therefrom. One 
instance, put many years ago, is that of an "Act or- 
daining that the same person shall be party and judge 
which (so the court said) 2 would be a void Act; but 
not only do cases arise in which a judge with an 
interest in the decision must sit or no decision can 
ever be had, but the better opinion clearly is that in 
that day, as now, if Parliament should plainly and 
positively so enact, no court would dream of under- 
taking to stand in its way, and, of course, any court 
would be utterly powerless, if the legislative body 
should insist. 

Such decisions as that in Bonham's case appear to 
be but the vagaries of an able man, swept away by 
the pomp of his office and by an overweening worship 
for that which a later judge, strangely enough, called 
"the perfection of human reason." It flies, too, in 
the face of actual experience ; for what could be more 
absolutely against common reason, and in violation 
of all the rules of liberty and justice, than those acts 
of attainder which occur here and there in English 

1 "Report of the Committee on the Duty of Courts to Refuse 
to Execute Statutes in Contravention of the Fundamental Law," 
presented at the 38th Annual Meeting of the New York State 
Bar Association, held at the City of Buffalo on the 22nd and 23rd 
of January, 1913, p. 15 et seq. 

2 City of London v. Wood, 12 Modern, 687. 



JUDICIARY TO THE CONSTITUTION 33 

history and in that of our colonial period? To enact 
that John Doe shall be judge in a case in which he is 
a party, is certainly very unjust, nor can the violation 
5e justified, unless absolute necessity compels it. The 
injustice of such legislation, however, pales before that 
of an Act which rudely seizes a citizen and, without 
even a pretense of hearing or trial, condemns him, — 
often on common rumor, — to be drawn and quartered, 
to have all his possessions forfeited, and to suffer that 
corruption of blood which falls mainly on his inno- 
cent offspring. While these instances of attainders 
stare us in the face, the doctrine of Bonham's case 
must surely be classed as a vagary, or else it must 
be regarded simply as a judicial instance of juggling 
words, so as to avoid a very unjust result, which the 
judge is convinced was not in reality intended by the 
legislative authority. 

But again here, as has not infrequently been seen 
in human history, this particular doctrine, though quite 
false in essence, has had no little influence. Our 
colonial lawyers seem to have believed in it, and it 
fitted in well with the Middle Ages' idea of funda- 
mental principles implanted by God, and, again, in 
the fertile soil of "Man in a State of Nature." 
Probably, also, the ultra-theological view of public 
affairs tended to its acceptance. At a very early date 
in our history it was widely admitted in at least part 
of the country. 

In the controversy of Massachusetts with the other 
Confederate Colonies of New England in 1653 upon the 



34 THE RELATION OF THE 

right of the Confederation to make offensive war, all 
parties agreed that any acts or orders manifestly unjust 
or against the law of God were not binding. ... In 
1688 "the. men of Massachusetts did much quote Lord 
Coke. 3 " 

We shall find, too, resort to it made by our public 
men in some few instances preceding the Revolution, 
where some law very obnoxious to the principles of 
liberty was under argument in the colonial courts, 
and, again, against the Stamp Act. 

The history of our colonial period has not yet been 
sufficiently studied for one to know positively whether 
in those days the courts in this country rendered occa- 
sional decisions approaching our modern ones on the 
branch of constitutional law with which this book is 
concerned. A vast deal of turning over of dusty 
records must yet be done before this point can be 
settled. Some writers think the evidence is that 
there were such, and cite certain colonial cases as in 
point, and vague gropings in the general direction are 
certainly to be found in these, while some rather 
closer approaches have been apparently brought to 
light by the recent investigators of the records of the 
English Board of Trade; but neither of these classes 
furnishes, in my opinion, any substantial support to 
the American Doctrine. It is noteworthy, too, in this 

'Article on "Writs of Assistance," printed in Quincy's Reports 
(said in the Preface of 1864 to be by Horace Gray, Jr., of the 
Boston bar, later a Justice of the Supreme Court of the United 
States), Appendix I, p. 527, footnote. Lambert MS. quoted in 
Bancroft's "History," Vol. II, p. 428, is cited as authority for 
the matter in sub-quotations at the end of my quotation. 



JUDICIARY TO THE CONSTITUTION 35 

connection that, when the system in question was 
being forged into shape (at and about 1787), no hint 
reaches us of a knowledge among the public men of 
the day as to decisions of this character having been 
rendered by colonial courts. 

It is not altogether easy to understand how they 
could have been avoided at times under, for instance, 
the British statute providing specifically that colonial 
laws or customs repugnant to any Act of Parliament 
having relation to the colonies, should be null and 
void, 4 and it may yet possibly turn out that instances 
of the kind or very close to it, did occur in this con- 
nection. It will shortly be shown that the nearest 
known approach seems to be in a case of this char- 
acter, where the colonial courts had before them two 
conflicting laws in relation to the same subject, and 
thus were apparently almost forced to decide whether 
to carry out the law of the colonial legislature or the 
specific and differing provision of an Act of Parlia- 
ment in regard to the value of coins. 

Probably one reason for the absence of such deci- 
sions in general is to be found in the fact that by 
the date when the colonies came to have any real im- 
portance, our stiff-necked colonial ancestors had, in 
the main, succeeded in securing the control of their 
own affairs. It is true that in some colonies the 
judges were actually named by the Crown, but this 
was by no means always the case; and even in such 

4 "The American Doctrine of Judicial Supremacy," by Charles 
Grove Haines, p. 65, citing "Statutes of the Realm," Vol. VII, 
p. 105 (1696). 



36 THE RELATION OF THE 

instances the nominees were likely to be citizens of 
the colony itself. 

There was one other vital matter in the connection : 
The lower houses in the legislatures held the purse- 
strings for the judges, as well as for other officers, 
and this has always been a potent influence with the 
sons of men. This result was the culmination of a 
long struggle in which the Governors and the Crown 
appointing them had sought to drive the legislatures 
to provide permanent salaries, but with no measure 
of success. The lower houses stood out against any 
such plan, with a most dogged persistence; and long 
succeeded, too, in making the commissions of the 
judges read "during good behavior/' instead of "dur- 
ing pleasure," as the Crown wanted. They were, it 
is true, in the end defeated as to this latter point, 
but they had th£ir own Treasurer, by whose hands 
salaries were paid; and these salaries were subject to 
frequent regulation by the legislature. 

And the "legislature" meant the popular branch. 
By 1765, so we are told, the Councils had been robbed 
of their chief legislative powers, and 

Judges and other officers had .become dependent upon 
the lower house. . . . There is but little doubt that the 
power of the Assembly to fix salaries rendered all the 
judges practically dependent upon that body, except in 
the few instances in which they received their salaries 
from the crown. In New York the salaries were varied 
from time to time, and in one case apparently for the 



JUDICIARY TO THE CONSTITUTION 37 

purpose of showing disapproval of a decision of the Su- 
preme Court. 5 

The judges thus came to be dependent in a vital 
matter on the colonial authorities, and would probably 
have been slow to decide that laws passed by their 
actual master were void because of being in viola- 
tion of some law, or charter, which owed its force 
to a power on the other side of tempestuous seas, 
three thousand miles away,— a distance in modern 
times of five days or little more, but then of long, 
long months, or even of years. But this is thrown 
out merely as a suggestion or guess as to the reason 
for the entire absence of a line of decisions of which 
we should expect at least to find instances, and which 
the student of days to come may yet learn did exist. 

Let us now examine the few cases, or hints that 
have come down to us across the centuries; and, in 
the first place, it will be best to consider such as are 
preserved in our own records. 

One very early case in a colonial court does grope 
around the general subject, and uses language not 

5 Dickerson's ''Colonial Government," pp. n and 195, and see 
generally 160-207. "Introduction" to Geo. Chalmers's "History of 
the Revolt of the American Colonies," Vol. II, pp. 52-56, is to 
the same effect. He writes that between about 1720 and 1730 
the New York Assembly seized all powers, made every officer 
dependent on them, and cut the Chief Justice's salary from 300 to 
250 pounds a year, "pretending that they did not object to his 
administration, but that the colony, now less wealthy than for- 
merly, was unable to maintain so great an establishment." They 
also, Chalmers adds, weakened the supreme court of common 
law, and then proceeded to overturn the chancery courts, re- 
solving that they had "been established by incompetent powers." 



38 THE RELATION OF THE 

entirely dissimilar from that to be found in judicial 
rulings of to-day; but it is, in my opinion, far from 
being in point, or a decision of the question in the 
judicial sense. Giddings v. Brown is referred to, — a 
case that was decided by Magistrate Symonds in 
Massachusetts in 1657. It is far from clear, like 
many another case ; however, one point plain enough is 
that the enactment attacked was not at all a statute 
passed by the Legislature but a mere ordinance of the 
town authorities of Ipswich. They had levied a sum 
on the inhabitants to buy or build a house for a new 
parson. This was resisted by Giddings, and Symonds 
held that he could not be forced to pay. 

The idea which Symonds seems to have acted on 
was that Giddings' property was simply being taken 
from him and handed over to another. This, he said, 
could not be done even by Parliament, though it may 
tax the whole country, but "it is against a fundamental 
law in nature to be compelled to pay that which others 
do give." Even in England, he adds, citing Finch, 
a law which is "repugnant to fundamentall law" is 
void; and he cites similar colonial decisions made by 
a town (not by a court) in regard to such questions, 
for instance, as a levy to bring in a surgeon to reside 
in the town. Symonds's decision was later reversed 
in the General Court, and the levy held valid. 6 

6 Giddings v. Brown, cited in "The English Common Law in 
the American Colonies," by Paul Samuel Reinsch, in "Select 
Essays in Anglo-American History," Vol. I, pp. 376, 377. Mr. 
Reinsch refers for a full report of the case to the "Hutchinson 
Papers," Vol. II, p. 1 et seq., whence my account is of course 
taken. 



JUDICIARY TO THE CONSTITUTION 39 

A footnote to the case suggests that the real ques- 
tion at issue was whether an act of the supreme au- 
thority empowering the majority of the inhabitants 
of a town to tax a non-consenting minority 
was or was not contrary to the fundamental 
laws of government. If the legislative authority 
had formally authorized the towns to do this, 
the case would technically be far more nearly in 
point; for then the town ordinance would be in- 
directly the act of the supreme power itself. How- 
ever, the long and rambling report fails to show this 
fact, and the judge certainly acted upon no such 
theory, but upon the conviction that the ordinance was 
contrary to natural justice. In other words, he ap- 
plied that later favorite of the colonists : Coke's doc- 
trine that statutes against common right and reason 
are void. There was at the time a controversy in the 
colony whether spiritual guides should be entirely de- 
pendent on voluntary contributions, or whether an 
objecting minority should be forced equally to pay. 
In the following century, a Massachusetts law of 1722, 
levying a tax on Quaker towns for the support of 
Congregational ministers, was of course not set aside 
in Massachusetts, but it was disallowed by the King 
in Council. 7 

7 Dickerson's "Colonial Government," pp. 267-269. See, how- 
ever (infra, pp. 42, 43), the opinion of Yorke and Talbot in 1732 
in relation to a like tax complained of by some members of the 
English church, who had been sent out to America. "Historical 
Collections of the American Colonial Church," by Wm. Stevens 
Perry, Vol. Ill, Massachusetts, pp. 274-288, or "Statutes at Large 
of Pennsylvania," Vol. V, pp. 735-737. I am indebted for this 
reference and for other aid in this general matter, to Prof. Elmer 
Beecher Russell. 



40 THE RELATION OF THE 

The well-known case of Frost v. Leighton 8 has 
also been thought to be in point, but does not seem 
to be so in reality. It is true that in this instance 
the Superior Court of Judicature of Massachusetts 
Bay declined to enforce an order issued by the King 
in Council, alleging as its reason that "the powers 
of the court derived through the charter and the laws 
passed to carry the same into effect, were in the 
judgment of the court inadequate for that purpose." 
But in reality, in so far as this action is not to be 
classed as bold defiance, the language was merely a 
subterfuge, and at other stages of the litigation, the 
Massachusetts court simply declined to carry out Eng- 
lish decrees in the case on w T hat have been deservedly 
called "disingenuous" grounds. At one time they 
complimented counsel on his suggestion of certain 
very technical .reasons, which had "relieved them from 
their embarrassment. 9 " 

The truth is that the case was but one in a long 
struggle by the colonial authorities to prevent appeals 
to the Privy Council, or to rob them of all effect. In 
the particular instance, the authorities in the new 
country wriggled and twisted in every way, first in 
order to prevent any appeal to the Privy Council, and, 
when that effort failed, to prevent the decree, — or 
rather the decrees, for there were several of them, — 
from having the least effect. 

They were indeed a bold and self-assertive people, 
already far along on the high road to independence, 

8 "The Case of Frost v. Leighton," by Andrew McF. Davis in 
American Hist. Review, Vol. II (Jany., 1897), PP- 229-240. 

9 Ibid., pp. 234, 238. 



JUDICIARY TO THE CONSTITUTION 41 

and we are told that about the last step in this lengthy 
controversy was that, when the Governor sent two 
orders of the Privy Council to the court, complaining 
that nothing had yet been done in the matter, though 
the legal form of issuing a summons to show cause 
was gone through with, — "it is doubtful whether even 
this perfunctory recognition of the governor's com- 
plaint was actually performed." The litigation had 
then been pending, and all the efforts of the home 
authorities successfully resisted for seven years, 10 nor 
need we wonder that the Secretary of the Board of 
Trade was informed at much the same time, from 
another colony, that this latter possession was aiming 
at "nothing less than being independent of the king- 
dom of Great Britain, as fast as they can. 11 

One other possible indication must be mentioned 
here, though it is far too vague to rely upon in a 
matter of history. In New York in 1691, after the 
end of Leisler's rebellion, the Assembly alone under- 
took to enact that many theretofore undoubted laws 
of the province were "null void and of none effect, ,, 
and this extraordinary resolution was not even pre- 
sented to the Governor and Council for their concur- 
rence. 12 Such were now and then the incomprehen- 
sible methods of our ancestors in colonial days, and 
surely this instance bears out what has been said in 

10 Schlesinger's ''Appeals to the Privy Council," "Political Sci- 
ence Quarterly," Vol. XXVIII, pp. 434-437. 

11 "Introduction" to "History of the Revolt of the American 
Colonies," by Geo. Chalmers, Vol. II, pp. 55-56. 

12 John R. Brodhead's "History of New York," Vol. II, pp. 
643, 644. 



42 THE RELATION OF THE 

these pages, that they needed a guiding and helping 
hand. It was to this resolution that Gov. Cadwallader 
Colden had reference, when he wrote in 1759: 

By the first Act or Resolve of the first Assembly after 
the Revolution, a power is assumed of repealing Laws 
without the concurrence of the other branches of the 
Legislature, or a Judicial power of declaring them void. 
A Power which in no wise belonged to them : and which, 
if countenanced, may be highly prejudicial both to the 
Crown and the Subject; and yet this usurped power has, 
in this instance, taken effect ever since. 13 

I have placed in italics the words in Colden's letter, 
which seem so indicative, and it is certainly not easy 
to understand how he came, in referring to laws of 
the Legislature, to speak of "a Judicial power of de- 
claring them void," unless the colonial courts had in 
that instance exercised the power referred to, or, at 
least, unless some such power in the Judiciary was 
talked of among the men of the time. 

It remains to consider the instances which have been 
so recently discovered in the records of the Board of 
Trade in England. But it should be said, in the first 
place, that it is clear that the English lawyers, — and 
hence, presumably, the American lawyers also, — well 
knew the system by which colonial laws were occa- 
sionally held unauthorized and void by the English 
courts, as well as by the King in Council. Thus, 
Yorke and Talbot, in an opinion of 1732, upon the 
complaint of members of the English Church, as to 
18 "New York Historical Society Collections," 1869, pp. 203-211. 



JUDICIARY TO THE CONSTITUTION 43 

whether Massachusetts laws authorizing a levy on 
all inhabitants for the support of the Congregational 
Church were void, wrote that the laws could not then 
be disallowed by the Crown, adding, however: 

If they were really void in themselves on this ac- 
count, yet no Extrajudicial Declaration that they are so 
would be conclusive, but the only Method of bringing 
that matter to a Determination would be by some Ju- 
dicial Proceeding. 14 

Similarly, Pratt and Yorke wrote in an opinion of 
1750 that, though in general an act must be approved 
or disallowed by the Crown as a whole, yet particular 
provisions in violation of an Act of Parliament may 
be void ab initio, and added: 

These are cases the decision of which does not depend 
on the exercise of a discretionary prerogative, but may 
arise judicially and must be determined by general rules 
and the constitution of England. And upon this ground 
it is that in some instances whole acts of assembly have 
been declared void in the courts of Westminster Hall, 
and by his Majesty in council upon appeals from the 
plantations. 15 

One record has been brought to light, showing that 
at least one judge in this country had some idea of 
the matter in 1742, and was in doubt what a court 
ought to do, when a colonial statute repugnant to 

14 "Historical Collections of the American Colonial Church," 
by Wm. Stevens Perry, Vol. Ill, Massachusetts, pp. 274-288. 

15 "Statutes at Large of Pennsylvania," Vol. V, pp. 735-737. 



44 THE RELATION OF THE 

the laws of England was an essential element in some 
case before it. Chief Justice Whitaker, of South 
Carolina, sent a representation to the Board of Trade 
in that year, in which he wrote at some length of 
the courts of law, and then went on substantially as 
follows : 

Sometimes acts have been made in the Parliament not 
only contrary to the King's instruction and prerogative, 
but repugnant to the laws of England. Are these laws 
void from the beginning or only voidable by his Maj- 
esty's disallowance ? What are judges to do when they 
are pleaded in evidence? 16 Is repugnance to the laws 
of England to be understood of the Common or Statute 
law or of the Common Law as altered, explained or en- 
larged by Statutes, and what obligation has the statute 
law of England in the Plantations? . . . Can x\cts of 
Assembly which have been confirmed by the Crown be 
repealed or altered by subsequent acts before such sub- 
sequent acts have been confirmed by the Crown ? 17 

One other indication of the feeling on this general 
subject in South Carolina has been preserved, and is 

16 Italics mine. 

17 For this instance, which seems to me to show pretty plainly 
that such questions must have presented themselves at times to 
inquiring minds, I am entirely indebted to Prof. Elmer Beecher 
Russell. Upon my inquiring whether his notes made in England 
contained anything further upon the general subject of the action 
of colonial courts than is mentioned in his "Review of American 
Colonial Legislation," and especially at the end of footnote 3 
in ibid., p. 137, he kindly sent me this and a number of other 
memoranda he had made. My quotations are from his letter to 
me, which contains his notes as made abroad from the English 
records, but these (he writes me) are not verbatim copies but 
his summation. The reference to the Board of Trade records 
for this instance is C 0/5 — 369-118 and 370 — H34. 26 Jan., 1742. 



JUDICIARY TO THE CONSTITUTION 45 

strikingly similar to that just cited. In 1768 the au- 
thor of an article on representation and the power 
of their assembly in the matter, writing at a time when 
the assembly had undertaken to reduce the representa- 
tion in some parishes, argued that the right of repre- 
sentation rested on the English constitution, could 
only be granted by the King, and could never be re- 
voked. Continuing, he said : 

Being a part of the constitution, the Assembly had no 
power over it. In the writer's own words, "the consti- 
tution is as much above the reach of an act of assem- 
bly as Mt. Ossa is to a molehill. ,, 18 

In addition to these hints, from Chief Justice 
Whitaker and the unknown writer in South Carolina 
just cited, one actual instance has been found in the 
Board of Trade records, in which it seems fairly 
clear that in a case of the nature put by Whitaker of 
South Carolina, the courts of Massachusetts and of 
New Hampshire about 171 1 carried out an Act of 
Parliament in preference to a differing prior law of 
their own province in the same matter, which had been 
perfectly valid before the Act of Parliament, and had 
not been formally repealed. 

This instance arose in the following way: The 

colonies had long been in the habit of passing laws to 

regulate the value of foreign coins, with the aim of 

18 Wm. A. Schaper's "Representation and Sectionalism in South 
Carolina," in "Annual Report of American Historical Associa- 
tion/' 1900, Vol. I, pp. 230 et seq. See especially p. 347. There 
had been repeated efforts by the Assembly to alter the represen- 
tation, and several such laws had been disallowed. 



46 THE RELATION OF THE 

securing a circulating medium, but the Crown had 
always disallowed these, and finally issued a proclama- 
tion specifically regulating the coin values in the colo- 
nies, and not long thereafter an Act of Parliament to 
the same effect was passed. This was the end of the 
matter, as there was already a general Act 19 upon 
the statute-book, providing specifically that colonial 
laws, or customs, repugnant to any Act of Parliament 
having relation to the colonies should be null and void. 
In 1697, Massachusetts had passed an act to regulate 
the values of foreign coins, and tftis had been confirmed 
by the Crown in council. Then came ' the King's 
proclamation of 1702; but the Attorney-General of 
England gave it as his opinion that the confirmed 
colonial law was still of effect, despite the royal 
proclamation. Still another question arose, however, 
after the passage of th£ Act of Parliament of 1704 
regulating the values, because of the general statute 
providing for the nullity of provincial laws differing 
f ropi one enacted by Parliament. 

How was this nullity to be ascertained and declared ? 
If the colonial courts were to settle the question by 
examining and weighing the two opposing legislative 
acts, — of their Legislature and of Parliament, — to 
find out which was the fundamental and superior, and 
then to enter a decree based on the conclusion that 
one or the other was unauthorized and void, their 
decisions would come very close to the American Doc- 
trine, and we are told in this instance, on the evidence 

19 Haines's "American Doctrine," p. 65, citing "Statutes of the 
Realm," Vol. VII, p. 105 (1696). 



JUDICIARY TO THE CONSTITUTION 47 

of a letter to the Board of Trade from the Governor 
of Massachusetts, preserved in the British records, 
that 

After the passing of the Act of Parliament, the provin- 
cial courts, at least, appear to have followed the values 
prescribed therein. 20 

It is impossible to-day to go further into this ques- 
tion, and it must be left to the future to follow out 
the indication, in order to learn whether or not the 
courts of our colonies did undertake, in more than 
a very few, — or perhaps even a single instance, — to 
examine the relative value of conflicting laws upon the 
same subject passed by two legislative bodies, and to 
decide in a proper case that the law passed by their 
own Legislature was void, because unauthorized by 
a more fundamental charter, or Act of Parliament. 

20 Russell's "Review," etc., p. 137, footnote 3, citing C 0/5—323, 
F, 14. C 0/5 — 913, p. 285; 29 January, 1711. In this case again 
Prof. Russell has very kindly given me a more extensive detail 
of what his notes made in England contain. Lieut.-Gov. Usher 
of New Hampshire had written the Board of Trade that the Act 
of Parliament relating to foreign coins was being violated, and 
then Governor Dudley of Massachusetts wrote them on No- 
vember 15, 1710, going into the history of the laws. The colonial 
law was of 1697 and prescribed "the former usage" of 17 penny- 
weight, while the King's Proclamation of 1702 fixed 17}^ 
pennyweight, and the Act of Parliament of 1704 confirmed this. 
Dudley wrote that "Since then all courts have given judgment 
at 17^ and the Treasury can receive no more. Usher ought to 
know this. It is true also of New Hampshire." The Board^ in 
a reply to Dudley of Jany. 29, 171 1 (Russell's "Review," citing 
ibid., p. 322), "express themselves as satisfied with what he 
writes in regard to coin." The quotation in my text is from 
Russell's "Review" at the page indicated, and those in this foot- 
note are from his letter to me, which contains (as already said) 
not verbatim transcripts from the records but his summation of 
what they contain. 



CHAPTER III 

FUNDAMENTAL LAW AND COKE'S DOCTRINE DURING 
REVOLUTIONARY DAYS. CONFLICTING LI 
TION OF THE PERIOD AND ITS EFFECT ON PUBLIC 
OPINION 

Probably a people seldom or never altogether 
abandons the fundamental principles of its creed in 
regard t; governmental affairs. They may, doubt- 

ss, in the course ;: centuries take up many new be- 
liefs, and in a time of stress and revolution mav even 
suddenly alter their principles so enormously that 
these will be hafd to recognize, but the old is pre: 
sore ro survive in some form and to be used as a 

nstituent element in the new edifice. 

Such was, I think, emphatically the case with our 
ancestors. The race continued to breed true to 
stock and to its environment They hardly could 
have shed My Lord C - doctrine of void laws and 
the older doctrine of fundamental principles implanted 
by God ; for here was a theory of public affairs right 
at hand, which -had infiltrated itself into their minds, 
and which offered an easy method of escape from 
unauthorized statutes. We shall ^^e how quickly th 
had resort to it, under the swelling of that spirit of 
independence which reached its culmination in Vfjt 

4* 



JUDICIARY AXD CONSTITUTION 49 

though it had long before been planted in their nature 
and had already had a sturdy growth. 1 Those active, 
thinking, determined men wanted a justification for 
their actions; they felt forced to hold their people 
united ; and the best defense at hand was one that was 
a sort of birthright of belief. 

When, then, early in the second half of the eigh- 
teenth century, an effort was made in the higher courts 
of Massachusetts to issue general search-warrants, or 
"Writs of Assistance," to aid the Crown authorities in 
ferreting out smuggling, by means of house to house 
terrorizing, the old inherited belief was by no means 
forgotten, and James Otis based his argument against 
the writs on the claim that they violated English lib- 
erty and ''the fundamental principles of law." Mere 
notes of his speech, written down by John Adams, 
survive, but these abstract him in part as follows : 

As to acts of Parliament. An Act against the consti- 
tution is void : an act against natural equity is void ; and 
if an act of Parliament should be made, in the very 
words of this petition, it would be void. The executive 
courts must pass such acts into disuse [referring to 
Yiner]. . . . Reason of the common law to control an 
act of Parliment. 2 

1 Hosts of facts in proof of this could easily be gathered, but 
the instance (cited ante, p. 41) of the Attorney-General writing 
from New York in 1728 that the colony was aiming at "nothing 
less than being independent of the kingdom of Great Britain, 
as fast as they cai enough here. 

'John Adams's "Works." Vol. II, pp. 124-125, and Appendix, 
pp. 521-525. See also Quincy's (Mass.") Reports, Appendix I, 
PP- 395-54°. tor article by the late Justice Gray. 



50 THE RELATION OF THE 

And in a pamphlet 3 of a few years later (1764), 
Otis wrote : 

If the reasons that can be given against an act are such 
as plainly demonstrate that it is against natural equity, 
the executive courts will adjudge such act void. It may 
be questioned by some, though I make no doubt of it, 
whether they are not obliged by their oaths to adjudge 
such act void. ... To say the parliament is absolute 
and arbitrary, is a contradiction. . . . The supreme 
power in a state is jus dicer e only; jus dare, strictly 
speaking, belongs alone to God. Should an act of parlia- 
ment be against any of his natural laws, which are im- 
mutably true, their declaration would be contrary to 
eternal truth, equity and justice and consequently void: 
and so it would be adjudged by the parliament itself, 
when convinced of their mistake. Upon this great prin- 
ciple, parliaments repeal such acts, as soon as they find 
they have been 'mistaken. . . . When such mistake is 
evident and palpable . . . the judges of the executive 
courts have declared the act "of a whole parliament void." 

Far off to the South, too, about a decade later 
(1772), the same argument was advanced by George 
Mason, as against a law of Virginia of 1682 for the 
sale of the descendants of Indian women as slaves. 
The statute, he contended, 

was originally void in itself, because it was contrary to 
natural right. . . Now all acts of legislature apparently 
contrary to natural right and justice, are, in our laws, 

a "Rights of the British Colonies Asserted and Proved," pp. 
4i, 47. 



JUDICIARY TO THE CONSTITUTION 51 

and must be in the nature of things, considered as void. 
The laws of nature are the laws of God; whose author- 
ity can be superseded by no power on earth. A legis- 
lature must not obstruct our obedience to him from 
whose punishments they cannot protect us. All human 
constitutions which contradict his laws, we are in con- 
science bound to disobey. 

Bland, on the other side, did not apparently dispute 
these arguments, but maintained that the system of 
degrees or grades in society was conformable to the 
general scheme of the Creator, and that the position 
of slaves must be filled by some. The decree of the 
court was that the Act of 1682 had been repealed by 
an Act of 1705. 4 

When, at length, the Stamp Act was passed, and 
the colonies burst out in flames of almost revolution, 
the leaders of the movement eagerly wanted to save 
their people from absolute control by a nation at three 
thousand miles' distance, and at the same time they 
wanted a basis of reason to show the legality of their 
course. It was not altogether easy then, — far less so 
than it seems to us to-day, one hundred and fifty years 
later, — to find this, and they groped about a good deal 
for a time in rather a vague way. The beginnings of 
all principles are vague and groping, and it does not 
argue against the soundness of our American Doctrine 
of Judicial Power that it was slowly led up to by halt- 
ing and uncertain steps, by some backing and filling, 
by the assertion of alleged principles which will not 
bear scrutiny. 

4 Robin v. Hardaway, Jefferson's (Virginia) Reports, p. 109. 



52 THE RELATION OF THE 

The Courts in Massachusetts were closed after the 
passage of the Stamp Act, because of its requirement 
that only stamped paper should be used, and because 
there were no stamps in the colony. In this state 
of circumstances, Boston adopted a petition to the 
governor and council to open the courts, despite this 
defect, and the young John Adams found himself sud- 
denly appointed one of the counsel to present the 
petition. It was a responsible position for a man of 
thirty to fill, and Adams was evidently in much doubt 
as to the best line of argument to adopt. To quote 
from his "Diary" : 

Shall we contend that the Stamp Act is void, — that the 
Parliament have no authority to impose internal taxes 
upon us, because we are not represented in it, — and there- 
fore that the Stamp Act ought to be waived by the judges 
as against natural equity and the constitution? Shall 
we use these as arguments for opening the courts of law? 
Or shall we ground ourselves on necessity only? 5 

He was still a little drifting, too, at the argument, 
for the same "Diary" 6 has it that he based himself on 
such contentions as that "the act of law never doth 
wrong," "An Act of Parliament can do no wrong"; 
though he did advance the doctrine of Coke, and argue 
specifically that "Acts of Parliament against reason 
or impossible to be performed, shall be judged void." 
A more inspiring outline of his address, but quite con- 

5 John Adams's "Life and Works," Vol. I, pp. j6, 77. 

6 Ibid., Vol. II, pp. 157 et seq. 



JUDICIARY TO THE CONSTITUTION 53 

sistent with the foregoing, is to be found in another 
place. Here he is represented to have spoken thus : 7 

The Stamp Act, I take it, is utterly void, and of no 
binding force upon us; for it is against our rights as 
Men and our Privileges as Englishmen. An Act made 
in defiance of the first Principles of Justice, an Act which 
rips up the Foundation of the British Constitution and 
makes void Maxims of eighteen hundred Years' stand- 
ing. 

Parliament may err; they are not infallible; they have 
been refused to be submitted to. An Act making the 
King's Proclamation to be law, the Executive Power 
adjudged absolutely void. 

The Stamp Act was made where we are in no sense 
represented, therefore no more binding upon us, than an 
Act which should oblige us to destroy One-half of our 
species. 

There are certain Principles fixed unalterably in Na- 
ture. 

If there was early mist, and if counsel groped in 
the preparation of the case and even in its argument, 
much of this was cleared away by the glare of argu- 
ment, and, — with even a remarkable approach to our 
modern viewpoint, — the Governor said, after the dis- 
cussion was over : 

The arguments made use of, both by Mr. Adams and 
you [Otis] would be very pertinent to induce the Judges 

7 Andrew C. McLaughlin's "The Courts, the Constitution and 
the People," p. 80, citing Justice Gray's article in Quincy's 
(Mass.) Reports, pp. 200, 201. 



54 THE RELATION OF THE 

of the Superior Court to think the Act of no validity, 
and that therefore they should pay no Regard to it; but 
the Question with me is whether that very Thing don't 
argue the Impropriety of our Intermeddling in a Matter 
which solely belongs to them to judge of in their Judicial 
Department. 8 

Again, in the matter of the Stamp Act, proceedings 
of a similar nature to those in Massachusetts occurred 
in Virginia. In the Court of Hustings for Northamp- 
ton County, so the original minutes of the Court still 
record, on February n, 1766, the Clerk and other 
Officers came in and prayed the opinion of the Court 
whether the Stamp Act 

was binding on the inhabitants of this Colony, and 
whether they the said Officers should incur any Penal- 
ties by not using^ Stamp Paper agreeable to the direc- 
tions of the said Act: The Court unanimously declared 
it to be their Opinion that the said Act did not bind, 
affect or concern the Inhabitants of this Colony; inas- 
much as they conceive the said Act to be unconstitu- 
tional. 9 

It was a bold announcement for a Court of minor 
jurisdiction to make, and the fact that such a Court 

8 Justice Gray's article in Quincy's (Mass.) Reports, p. 206, 
and see 204, cited in McLaughlin's 'The Courts," etc., p. 81. 

9 McMaster's "United States," Vol. V, pp. 394, 395- Prof. Mc- 
Master found this incident in a newspaper of the period and 
then traced it to its source. He kindly gave me his results, and 
I have secured, as he did, a certified copy of the minute in ques- 
tion, which is contained in "Minute Book No. 27" (1765-71), 
p. 30, still preserved among the records of the Court at East- 
ville, the capital of Northampton County. The quotation in the 
text is from this source. 



JUDICIARY TO THE CONSTITUTION 55 

announced the opinion that the Act was "unconstitu- 
tional" seems to show that American opinion was 
deeply infiltrated with this view. 

Revolution and rebellion, the determination to es- 
cape in one way or another from the Stamp Act and 
the absolute control it portended, were of course in 
the air of the colonies at this time, but it cannot be 
doubted that the people among whom these opinions 
were held and this judicial announcement was made, 
were already far along on the road towards our mod- 
ern doctrine upon the subject. Otherwise, the Execu- 
tive in Massachusetts would not possibly have sug- 
gested (as it has been seen that it did) that the Judi- 
ciary had the express function of examining into the 
validity of Acts of Parliament, or that in a proper 
case they "should pay no regard to them." 

So far had the belief of the colonists in the doc- 
trine of Lord Coke infiltrated itself among them, 
that in 1765 Hutchinson summed the matter up by 
saying with reference to the Stamp Act: 

The prevailing reason at this time is that the Act of 
Parliament is against Magna Charta, and the natural 
Rights of Englishmen, and therefore, according to Lord 
Coke, null and void. 

And a writer of fame, who examined this whole sub- 
ject some years ago, wrote that 

even the judges appointed by the Royal Governor do 
not seem to have been prepared to deny this principle. 
John Cushing, one of the associate Justices, in a letter 



56 THE RELATION OF THE 

to Chief Justice Hutchinson, dated "In a hurry, Feby. 7, 
1766," upon the question whether the courts should be 
opened without stamps, wrote, "It's true it is said an 
Act of Parliament against natural Equity is void. It 
will be disputed whether this is such an Act. It seems 
to me the main Question here is whether an Act which 
cannot be carried into execution should stop the Course 
of Justice, and that the Judges are more confined than 
with respect to an obsolete Act." . . . And in 1776, 
after the Governor had left, and the Council and House 
of Representatives had assumed the Government, John 
Adams, in answering a letter of congratulation upon his 
appointment as Chief Justice of Massachusetts, from 
Wm. Gushing, his senior associate, and who upon 
Adams's declination became Chief Justice in his stead, 
and afterwards a Justice of the Supreme Court of the 
United States, wrote, "You have my hearty concurrence 
in telling the jury the nullity of Acts of Parliament." 10 

Nor was this doctrine of Coke's by any means 
such an extravagance in that day as it doubtless now 
seems to nearly all of us. 11 As has been pointed 

10 Justice Gray's article on "Writs of Assistance," in Quincy's 
Reports, Appendix I, pp. 527, 528. dishing had written Adams, 
"I can tell the grand jury the nullity of acts of parliament, but 
must leave you to prove it by the more powerful arguments of 
the jus gladii divinum, a power not peculiar to kings or min- 
isters." To this the ever doughty Adams replied, "You have my 
hearty concurrence in telling the jury the nullity of acts of 
parliament, whether we can prove it by the jus gladii or not. 
I am determined to die of that opinion, let the jus gladii say 
what it will." John Adams's "Works," Vol. IX, pp. 390, 391. 

11 Perhaps some approval of Coke's Doctrine is to be found in 
the "Report of the New York State Bar Association Committee," 
pp. 15-18. If so, I think few will agree with its view. 



JUDICIARY TO THE CONSTITUTION 57 

out, 12 there was then no little authority for it, and the 
theory of the omnipotence of Parliament had not yet 
assumed positive shape. Several judicial decisions 
had followed rather in the line of Bonham's Case, and 
Bacon's and Viner's Abridgments, and Comyns' 
Digest, all leading authorities of about the middle of 
the eighteenth century, lent their united voices to its 
support. So the colonists had some ground to stand 
on, and probably they had chosen the most available 
weapon of defense they could find. 

The long war followed shortly on these events, 
bringing in its train terrible disorganization, and show- 
ing to our public men, even more plainly than to the 
outside world, the utter nakedness of our system of 
government. The Central Power could rarely enforce 
its policy, and had at times to proclaim aloud its in- 
capacity and to call upon the States to enact laws, 
which it had not the authority to pass or to enforce. 
The thirteen States, — discordant, dissevered, and not 
so very far from belligerent, — scorned requisitions, 
passed laws in the teeth of those of Congress, violated 
all agreements with foreign powers, and thus plunged 
our foreign relations into such a condition of con- 
flict and veritable chaos as could not be permitted to 
continue. 

We shall see how all this influenced our public men 

and helped to drive a much hesitating people, jealous 

to a degree of one another, and fearful of power, to 

the creation of a Union which has resulted, for good 

"Justice Gray's article on "Writs of Assistance/' in Quincy's 
(Mass.) Reports, Appendix I, pp. 395-540, or see New York "Bar 
Association Committee's Report," immediately above. 



58 JUDICIARY AND CONSTITUTION 

or ill, in that very increase of the central power which 
many of them so dreaded. Could 1787- 1788 have 
foreseen 1915-1918, I think the student of the earlier 
time will agree that the Constitution would never have 
been adopted. But this is quite aside from the mat- 
ters we are concerned with here. 

The point for us is how the chaos of war and the 
lamentable breaking down of our system of admin- 
istration called aloud for a cure, for some device by 
which the fourteen wrangling systems of government 
could be controlled and turned in one direction, which 
should represent the will of united America. This 
was fairly burned into the minds of many of our 
statesmen ; and we shall see how it came constantly to 
the surface in the Convention of 1787,— as well as, 
in reality, called it into being. 



CHAPTER IV 

OUR FIRST ACTUAL JUDICIAL DECISIONS THAT LAWS 
VIOLATED THE CONSTITUTION AND WERE HENCE 
TO BE HELD VOID. RECOGNITION OF THIS DOC- 
TRINE. ITS RAPID SPREAD 

The time and the circumstances of 1776- 1787 
were far from propitious for the creation of desirable 
principles of administration; and it is a striking fact 
that even during those troublous years the old in- 
herited doctrines of our colonial days, of which pre- 
ceding pages of this book have treated, still found 
expression, — even grew. Heredity continued to as- 
sert itself, and selection and specialization of the best 
traits of the earlier period began to lead rapidly 
towards that system of Judicial Power, which the 
United States have ever known. 

To this period belong the first actual decisions of 
our courts that specific laws passed by the Legislature 
were unauthorized, and hence void, or unconstitutional, 
and the court's consequent refusal to enforce them; 
while in other cases, or in other bodies, the general 
doctrine was recognized and at times most boldly as- 
serted by men of prominence, if in some instances the 
assertion was hesitating, or perhaps even vague. 
Many a rill and many a rivulet was flowing slowly on 

59 



6o THE RELATION OF THE 

to unite at length in that vast river that has ever 
characterized the American Judicial System. 

In that period, the first instance in which the sub- 
ject was possibly discussed and considered was the 
case of Josiah Philips in Virginia in 1778-79; but it 
furnishes no precedent x and is only to be noted be- 
cause it has long been thought to be one, and because 
the contradictory statements of the various actors in 
it at a much later period, — when waning memory was 
failing them, with all other faculties, — have always 
seemed to indicate that the question of the court's 
power to decline to carry out a law, on the ground of 
its unconstitutionality, was at least talked of in the 
consideration of the case. But, as shown above, late 
investigation has demonstrated that the question was 
in reality never presented by the facts of the case and 
the utterly irreconcilable old-man statements of the 

1 Philips had long hidden in the swamps of Virginia, coming 
out now and then to devastate and maraud. The authorities 
could not apprehend him, and finally the Legislature, on motion 
of Jefferson, passed an act of attainder against him in May, 1778, 
to go into effect if he should not give himself up by June 30, 
1778. He was later tried for robbery and executed, but it has 
until recently been a matter of doubt whether this was because 
the Attorney-General decided not to act upon the attainder or 
because the court held the attainder unconstitutional. The vari- 
ous statements of the chief actors and of historians cannot be 
reconciled. It has been recently shown, however, by Jesse Tur- 
ner ("A Phantom Precedent," in Amer. Law Review, Vol. 
XLVIII, pp. 321-344), from a record of Princess Ann County, 
that on June 11, 1778 (before the attainder was to come into 
being), Philips was present in court and was charged with 
feloniously robbing. See also Edward S. Corwin's "Doctrine 
of Judicial Review," pp. fl, 72: Burk's Girardin's "Virginia," 
Vol. IV, pp. 305, 306; Tucker's "Blackstone," Vol. I, Appendix, 
p. 293: "The Case of Josiah Philips," by Wm. P. Trent, Amer. 
Histor. Rev., Vol. I, pp. 444-54; etc., etc. 



JUDICIARY TO THE CONSTITUTION 61 

actors in it are far too vague to furnish a foundation 
for history. 

The march of time brings us now almost suddenly 
to the first well-established case in our country, in 
which a court undertook to decide that a specific stat- 
ute passed by their Legislature was in violation of the 
Constitution, and hence void, and that the court would 
for this reason decline to carry it into execution. 

In 1778 the Legislature of New Jersey had passed 
an act providing for the seizure of goods belonging 
to the enemy, and directing that the trial in such 
cases should be held by a jury of six, from whose 
decision there should be no appeal. It was a violent 
law, but was passed to meet a great and trying evil. 
There was at the time a specific provision in the New 
Jersey Constitution that "the inestimable right of 
trial by jury shall remain confirmed as a part of the 
law of this colony, without repeal forever/' and there 
were other pertinent provisions of her earliest laws, 
one of which read that "the trial of all causes . . . 
shall be heard and decided by the verdict or judgment 
of twelve honest men." 

Proceeding under the Act of 1778, Walton, an army 
officer, seized goods in the possession of Holmes, 2 

2 All the facts stated in the text in regard to Holmes v. Walton, 
unless otherwise specified, are taken from President Austin 
Scott's "Holmes v. Walton, The New Jersey Precedent, ,, "Rut- 
gers College Publications, No. 8," reprinted from Amer. Histor. 
Review, Vol. IV (April, 1899). Holmes v. Walton is referred 
to in State v. Parkhurst, 4 Halstead, 444, and at the time of my 
article of 1885 I knew of it only from this source, and drew some 
erroneous conclusions. President Scott has since identified the 
case and shown these errors. 



62 THE RELATION OF THE 

as belonging to an enemy; and the judgment having 
gone against Holmes, after trial before a jury of six, 
Holmes took out a certiorari to remove the record to 
the Supreme Court of the State. The case was argued 
before the Supreme Court in November, 1779, but 
was not decided until September, 1780, when the 
court unanimously reversed the decree of the court 
below, evidently for the reason that the Act of 1778 
authorizing a jury of six was held to violate the Con- 
stitution of the State, and hence to be void. 

The opinion has not survived, but collateral mat- 
ters make it plain that this was the reason of the 
court's decision, 3 and the Legislature recognized in 
effect the propriety of the decision, by passing a new 
statute in the matter, requiring a jury of twelve on the 
demand of either side. Holmes v. Walton was de- 
cided by David Brearly, 4 the Chief Justice of the 
State, and at the same time William Paterson was 
Attorney-General, and William Livingston Governor 
and also Chancellor. We shall see later the part these 
three men took in the Federal Convention of 1787, 

3 "The New Jersey Precedent," pp. 7, 8. For example, shortly- 
after the decision citizens presented a petition to the House, 
complaining that "the Justices of the Supreme Court have set 
aside some of the laws as unconstitutional, and made void the 
proceedings of the magistrates, though strictly agreeable to the 
said laws." Again, at a later stage of Holmes v. Walton, coun- 
sel assumed in argument that "a trial by six men is unconsti- 
tutional." 

4 His colleagues on the bench were Smith and Symmes. All 
three members of the Court had served in the field, and yet 
agreed in the decision, despite the urgency of the evil which 
the Act was intended to stop. William Willcocks was originally 
counsel for the winning party, and Elias Boudinot also appeared 
for him later. 



JUDICIARY TO THE CONSTITUTION 63 

and the use they seem to have made of Holmes v. 
Walton. 

Gouverneur Morris, too, knew of the decision, — 
at least, a very few years after its date, and Varnum, — 
soon of Trevett v. Weeden fame, — was a member of 
Congress, was present in Philadelphia at the time of 
the decision, and almost certain to have heard of such 
a case decided on the other side of the Delaware, 
which was then a matter of controversy in New 
Jersey, and of course argued among public men gen- 
erally. 5 

Commonwealth v. Caton 6 in the Court of Appeals 
of Virginia in 1782 is the next case for us to consider 
in point of time. This case is not one where any law 
was held to be unconstitutional, but the general ques- 
tion was under consideration by the court, and the 
case is particularly noteworthy on account of the clear- 
ness and great boldness with which members of the 
bench announced their right and power to decline to 
carry out a law, on the ground of its unconstitution- 
ality. It is hence not a lawyer's* precedent, and the 
remarks of the judges were obiter dicta; but history 
does not confine its consideration to such narrow and 
technical rules. In its domain, the fact that leading 
men held and boldly announced certain views, under 
great responsibility, is most persuasive evidence that 
those views rested on some solid foundation and were 
tending to be accepted of the sons of men. 

The questions presented by Comm. v. Caton were 

5 "The New Jersey Precedent," as above. 

6 4 Call, p. 5. 



64 THE RELATION OF THE 

two : ( i ) Whether an Act of the Virginia Legislature 
of 1776, — defining treason, and under which the 
prisoners had been convicted, — was a violation of the 
State Constitution, and (2) Whether, under the Vir- 
ginia Constitution, a pardon of the prisoners by a 
vote of the House of Burgesses alone was valid. The 
Court held that the Act of 1776 did not infringe the 
State Constitution, and that the pardon by the Bur- 
gesses alone was not valid; but then the members of 
the Court went on to announce their views upon the 
general question, and were most of them very clear 
as to their power and duty to hold a statute uncon- 
stitutional in a proper case. Wythe, J., said: 

Nay, more, if the whole Legislature, an event to be dep- 
recated, should attempt to overleap the bounds prescribed 
to them by the people, I, in administering the public 
justice of the Country, will meet the united powers 
at my seat in this tribunal and, pointing to the consti- 
tution, will say to them, here is the limit of your author- 
ity, and hither shall you go, but no further. 

The report adds that 

Chancellor Blair and the rest of the judges were of 
opinion that the court had power to declare any resolu- 
tion or act of the Legislature, or of either branch of it, 
to be unconstitutional and void, 

while the note of doubt, which was to be expected, 
and which shows that the vast import of the question 
was not lost sight of, was sounded by Pendleton, J., 
who said : 



JUDICIARY TO THE CONSTITUTION 65 

But how far this court, in whom the judicial powers 
may in some sort be said to be concentrated, shall have 
the power to declare the nullity of a law passed in its 
forms by the legislative powers without exercising the 
powers of that branch, contrary to the plain terms of that 
Constitution, is, indeed, a deep, important, and I will add, 
tremendous, question, the decision of which might in- 
volve consequences to which gentlemen may not have 
extended their ideas. 7 



An instance occurred in Pennsylvania in 1782, 
which is, however, no judicial decision upon the sub- 
ject, and did not even reach the courts, but which 
curiously illustrates how the same ferment was work- 
ing in the minds of Americans generally and, when 
it is coupled with the instance next to be mentioned in 
that same leading State, shows how widespread was 
the conviction of the judicial function in the matter 
of unconstitutional laws. 

During the war Washington had given a passport 
to a British officer to transport clothing to British 
prisoners at Lancaster, and a large quantity of goods 
had accordingly been conveyed into' the State for that 

7 Pendleton was apparently still a little in doubt at the time of 
the Virginia Ratifying Convention some six years later, and said: 
"My brethren in that department [the judicial] felt great uneasi- 
ness in their minds to violate the Constitution by such a law. 
They have prevented the operation of some unconstitutional laws. 
Notwithstanding those violations, I rely upon the principles of 
government — that it will produce its own reform, by the respon- 
sibility resulting from frequent elections.' , Cited from Elliot's 
"Debates," Vol. Ill, p. 299, in Horace A. Davis's "The Annul- 
ment of Legislation by the Supreme Court," in Amer. Polit. 
Sci. Rev., Vol. VII, p. 573- 



66 THE RELATION OF THE 

purpose. As this was directly against an express law 
of the State, the goods 

were seized and condemned by the proper magistrate. 
On a complaint to the Legislature of the State, they re- 
ferred the same to their judicial officers, upon whose 
report (that Congress being vested with the power of 
declaring war, the right of giving safe passports to an 
enemy was necessarily implied, which, therefore, was 
duly exercised by their Commander-in-Chief, though no 
express power was given to him for that purpose) the 
Legislature declared their law directing the condemna- 
tion of the goods void ab initio, and the judgment of 
condemnation had no effect. 8 

In the pinch of doubt, the Legislature called upon 
"their judicial officers'' to resolve for them the ques- 
tion of the propriety, or even validity, of a statute of 
the State, and on their report declared the law void. 

The opinions held in Pennsylvania appear still more 

clearly in another instance. That State's Constitution 

8 Frank E. Melvin's 'The Judicial Bulwark of the Constitu- 
tion," Amer. Polit. Sci. Rev., Vol. VIII, pp. 167-204: see espe- 
cially p. 194. Mr. Melvin has not yet, I think, published in full 
his evidence in regard to this case, but he shows that the in- 
stance is referred to in "Annals of Congress, First Congress/' 
p. 1925, and the details in my text are taken from there. The 
statute of Pennsylvania regulating the importation was passed 
September 20, 1782, and is to be found in "Statutes at Large 
of Pennsylvania," Vol. X, pp. 497-505, and its partial repeal 
of March 20, 1783, in ibid., Vol. XI, pp. 68-70. The repealing 
statute recites the provisions of the original act requiring the 
nature and quantity of clothing intended for prisoners of war 
to be certified to the President and Council of the State before 
importation, and then goes on : "And whereas such provision is 
deemed contrary to [the spirit of] the 9th article of the Con- 
federation," etc., etc., that therefore that portion of the act is 
hereby made void and repealed. The Ninth Article of the Con- 
federation conferred on Congress the power to declare war. 



JUDICIARY TO THE CONSTITUTION 67 

of 1776 provided for a Council of Censors, whose 
duty it was, among other things, "to inquire whether 
the Constitution has been preserved inviolate in every 
part," etc., etc. This Council met in November, 1783, 
and appointed a committee to inquire what parts of the 
Constitution required amendment and whether the in- 
strument had been preserved inviolate. The Commit- 
tee reported in January, 1784, that there had been 
numerous deviations from the Constitution which they 
regarded as infringements, as well as suggested parts 
which they thought defective. In this latter connec- 
tion, they wrote that by the Constitution, 

the judges of the Supreme Court are to be commissioned 
for seven years only and are removable (for misbe- 
havior) at any time, by the general assembly. Your com- 
mittee conceive the said constitution to be in this re- 
spect materially defective . . . 

Because (2), if the assembly should pass an uncon- 
stitutional law, and the judges have virtue enough to re- 
fuse to obey it, the same assembly could instantly re- 
move them. 

The report was adopted. 9 

Rutgers v. Waddington, decided in New York in 

1784, is the next case in the history of this matter; 

and it is a highly important one, owing to the burning 

9 "The Proceedings relative to the calling of the Conventions 
of 1776 and 1790, etc., etc., and the Council of Censors" (Harris- 
burg, 1825), pp. 66, 67, 69, 70-114: I am indebted to E. S. Cor- 
win's "Doctrine of Judicial Review," pp. 40, 41, for this in- 
stance. See L. H. Meader on the "Pennsylvania Council of 
Censors," in Pennsylvania Magazine of History and Biography 
for October, 1898. The italics in the text above are mine. 



68 THE RELATION OF THE 

public interest at the time in regard to the decision, 
though it did not turn, as did the other cases treated 
in this chapter, upon an incompatibility between a 
State statute and the fundamental law of the same 
State, but between a State statute and an authorized 
action of the Central Government. This distinction 
seems to have escaped observation at the time, and the 
case appears to have been regarded by opponents pre- 
cisely as were the others here considered, merely from 
the general standpoint that the Judiciary was arrogat- 
ing powers to itself ; nevertheless, the difference is in 
reality very great, and the case will be best treated in 
the next chapter, together with some others of a like 
character. 

The year 1785 was marked by the Symsbury case 10 
in Connecticut, which was an ejectment by the town 
of Symsbury demanding the surrender of certain 
ground, held by the defendant Bidwell under a con- 
veyance by New Hartford. The original grant to 
Symsbury, made in 1670, had been contended by 
newer and rival towns not to be clear as to its extent, 
and a committee had been appointed by the General 
Assembly, without the concurrence of Symsbury, to 
make a survey and lay out the lines. This was done, 
and the report confirmed by the Assembly, with the 
result that the lands in suit were found to be outside 
the grant to Symsbury. 

But the court, in the suit of 1785, was of opinion 
that this was an error, that the original grant to 
Symsbury had contained the lands in question and that 
10 Kirby's Reports, pp. 444-453- 



JUDICIARY TO THE CONSTITUTION 69 

the title was still in that town, unless otherwise 
divested. They had never agreed to the survey, and 
the court was hence of opinion that 

the Act of the General Assembly, confirming Kimber- 
ley's [the surveyor's] line, operated to restrict and limit 
. . . the jurisdiction of the town of Symsbury, but could 
not legally operate to curtail the land before granted to 
the proprietors of the town of Symsbury, without their 
consent, 

and that their grant being the prior one, the title was 
in them. Judgment was accordingly entered for the 
plaintiff. The case was merely in the County Court 
of Litchfield, but the judge writes that the same point 
had been decided by them in the same way the year 
before, and that their ruling had been affirmed by the 
Supreme Court of Errors. 

Symsbury's case was certainly in a technical sense 
a clear decision in point, but it seems to have been 
entirely wanting in that eager and burning attention 
on the part of the bar and the public which marked 
some of the other cases at about the same date. But, 
even if it was thus less educative, it serves, — perhaps 
even more plainly, — to show how the doctrine was 
silently spreading far and wide, and coming to be 
accepted by the bench and bar. Even a dissenting 
judge in a like case in error wrote : lx 

I think it ought to be admitted in the case before us, 
that the proprietors of Symsbury could not have their 
11 Ibid., pp. 448-453. 



70 THE RELATION OF THE 

grant taken from them, or curtailed, even by the Gen- 
eral Assembly, without their consent. 

Trevett v. Weeden, in Rhode Island in 1786, is an- 
other case in which a State statute was squarely held 
unconstitutional, and was refused enforcement be- 
cause of being in conflict with a higher, fundamental 
law. 12 

Rhode Island had issued a large amount of paper 
money, and had provided that, in case a tender of it 
should be refused, a heavy penalty might be recovered 
against the party refusing, and that the trial of such 
a case should be held without a jury. The funda- 
mental law, on the other hand, preserved inviolate the 
ancient right of trial by jury. Trevett v. Weeden 
presented the issue here involved, excited intense in- 
terest with the public, and was argued at length. Var- 
num for the defendant quoted in his argument from 
Locke and Vattei, adapting their abstract views of 
infant society and social compact to the actual history 
of towns in Rhode Island. He cited a passage from 
Vattei to the effect that the Legislature cannot alter 
the fundamental constitutional law, without express 
authority so to do, and ending "In short, these legis- 
lators derive their power from the constitution; how 
then can they change it, without destroying the foun- 

12 Brinton Coxe ("Judicial Power and Unconstitutional Legis- 
lation/' p. 267) and some other writers distinguish Trevett v. 
Weeden on the ground that Rhode Island had then no written 
constitution, but the Colonial charter had been at least tacitly 
recognized as their fundamental law, and the statute in ques- 
tion was distinctly held to violate the provisions of that charter 
or constitution. 



JUDICIARY TO THE CONSTITUTION 71 

dation of their authority ?" 13 — words to be found in 
American history often since. The Court held the 
statute unconstitutional, but the judges were then 
summoned to appear before the Legislature and ex- 
plain their decision. They were appointed annually 
by the Assembly, and were not reelected at the ensuing 
election. 

The case is the first, but far from the last, in which 
a contest was made over the right claimed by the 
judiciary, and the great excitement in regard to the 
decisions in this particular case and in Rutgers v. 
Waddington, seems to exclude absolutely as to them 
at least the belief held by some writers, that in those 
days even important decisions remained unknown for 
long periods or forever. The great interest of the 
body of lawyers, the public meetings and agitation by 
the mass of the people and in the legislative halls, were 
far too great for such a result to follow. 

Nor is this all. It is not the way of lawyers, in the 
flush of a great victory, to hide their light under a 
bushel. Varnum, the winning counsel in Trevett v. 
Weeden, was a man widely known, then (1786- 1787), 
as well as in 1 780-1 782, a member of Congress, and 
so little was he silent in regard to his success that he 
almost at once (1787) published quite a pamphlet, 14 
which went at length into the case and his argument. 

Rutgers v. Waddington, as will be seen, had also 
been the subject of a contemporary pamphlet. Pam- 

13 Coxe's "Judicial Power/' etc., p. 240. 

14 'The Case of. Trevett v. Weeden," by J. M. Varnum ; also see 
McMaster's "United States," Vol. I, pp. 337-339, and Coxe's 
"Judicial Power," etc., pp. 234-248. 



72 THE RELATION OF THE 

phlets are written for the very purpose of making a sub- 
ject known, and exclude the idea of oblivion. As to 
Varnum, it is, I submit, impossible to conceive that 
he, — who, we are told, 15 was recognized by his col- 
leagues in Congress as "a man of uncommon talents 
and most brilliant eloquence," — did otherwise than 
talk and perhaps even boast of his triumph, as well 
as circulate his pamphlet, so that his then colleagues 
in Congress, and many other leading men + must 
quickly have become aware that at least in Trevett v. 
Weeden it had been judicially held that an Act of 
Assembly was in violation of the State Constitution, 
and that the Court had for this reason declined to 
enforce the act. 

Perhaps, too, as has been already hinted in these 
pages, Varnum had in turn derived his inspiration 
from Holmes v. Walton, which had been decided while 
he was a member of Congress ( 1 780-82 ) and in Phila- 
delphia, necessarily in close touch with many of the 
leading men of the country. And whether this con- 
jecture, — for such, of course, it is, — as to the knowl- 
edge of Holmes v. Walton by Varnum and thinking 
public men is justified or not, that case was at least 
well known to Gouverneur Morris in 1785, 16 while 
Trevett v. Weeden, — evidently without search in re- 
gard to this special point, — has been found reported 
in five contemporary newspapers. 17 

15 Appleton's Dictionary, sub Varnum. 

16 Austin Scott's "The New Jersey Precedent," p. 12, citing 
Sparks's "Life of Gouverneur Morris, ,, Vol. Ill, p. 438. 

17 Coxe's "Judicial Power," etc., p. 247, citing McMaster's 
"United States," Vol. I, p. 339. See, also, Coxe, pp. 234-248. 



JUDICIARY TO THE CONSTITUTION 73 

Rutgers V. Waddington, too, which was decided in 
1784, — and which is treated in the next Chapter, — 
excited intense interest in New York, and knowledge 
of the case traveled far and wide. Not only was it 
noticed at some length in a newspaper published on 
June 17, 1785, as far away as Charleston, but this 
paper's article was reprinted in the Pennsylvania 
Gazette of July 13, 1785, from which publication we 
learn that the Mayor, who had decided the case, 

having a high opinion of Lord Mansfield's wisdom and 
impartiality, drew up a clear statement of the case, and 
desired to know his opinion, whether the law of na- 
tions did not sanction the distinctions made in the judg- 
ment delivered by the Mayor's Court of New York, 
Lord Mansfield has sent back an answer, expressed in 
terms of the greatest politeness to the Mayor, informing 
him, that, in his opinion, the law of nations could never 
be pleaded against a law of the land. 

Trevett v. Weeden and Rutgers v. Waddington, at 
least, were certainly not allowed to fall into oblivion; 
and we shall find the same to have been the case as to 
Bayard v. Singleton in 1787. 

The principle involved in the foregoing cases was 
also known and recognized in New Hampshire in 
1785-87. William Plumer, a leading lawyer of the 
State, who often met Jeremiah Mason and Daniel 
Webster in forensic battle at the famous Rockingham 
County bar, was a member of the Legislature of the 
State in 1785, and wrote that at the second session 
held in that year : 



74 THE RELATION OF THE 

I entered my protest singly and alone, against the bill 
for the recovery of small debts in an expeditious way and 
manner; principally on the ground that it was unconsti- 
tutional. The courts so pronounced it, and the succeed- 
ing legislature repealed the law. 18 

Here is, of course, no judicial decision, but a most 
positive statement of the general doctrine in the Legis- 
lature, and an apparent recognition of it by the Legis- 
lature itself. What makes this instance, — and, still 
more, the case of McClary v. Gilman, referred to 
infra, 19 — very noteworthy is the fact that a pet fancy 
of the New Hampshire Legislature of colonial times 
had been to interfere with judicial proceedings, espe- 
cially by passing a bill to grant a new trial to a suitor 

18 "The Life of William Plumer" by his son William Plumer, 
Jr., P- 59- Italics are mine. I have secured from the office of 
the Secretary of State of New Hampshire copies of the Act of 
November g, 1785, "for the recovery of small debts in an ex- 
peditious way and nfanner," and of that of June 28, 1787, repeal- 
ing "an Act passed the ninth day of November^ 1785, entitled" 
as immediately above. The laws are in manuscript, that of 1785 
in Vol. V, pp. 147-149, and that of 1787 in ibid., p. 367. Plumer 
apparently meant that the courts pronounced the particular act 
unconstitutional, but his memory perhaps deceived him here, and 
at least the first known judicial decision seems to have been 
rendered in a case of his in 1791, as will appear later. His 
biographer, however states ("Life," pp. 170-172) that this case of 
1 791 (McClary v. Gilman, infra pp. 173, 174) was not the first case 
in which a law was held unconstitutional. Plumer was not mis- 
taken in regard to the repeal of the Act of 1785, as is shown by 
the citation from the legislative records. Jeremiah Mason was 
also (as Mr. F. E. Melvin (Amer. Polit. Sci. Rev., Vol. VIII, 
p. 194) has pointed out) counsel in another county of New 
Hampshire, — Westmoreland, — in similar cases where the Leg- 
islature had been guilty of "prescribing special rules for the trial 
of a particular action" at approximately the same date. "Mem- 
oir of Jeremiah Mason," pp. 26, 27. 

19 Pp. 173, 174. 



JUDICIARY TO THE CONSTITUTION 75 

who had lost his case : "restoring a party to his rights," 
as it was called. Numerous such laws of the colony 
had been disallowed by the Crown in Council ; and at 
one time, in 1764, no less than sixteen "extraordi- 
nary" laws were so brought to naught, the representa- 
tion for their repeal reading: 

The practice of passing laws of this nature ... is of 
such a dangerous tendency and example, and many of 
the laws are so unconstitutional and unjust that we fear 
it will be necessary that your Majesty's disallowance 
of them should be made public in order to deter the 
Legislatures of your Majesty's colonies from assuming 
powers and taking cognizance of matters that do con- 
stitutionally belong to the Courts of Justice alone. 

The evil habit of passing such laws continued after 
independence, 20 and soon led, as will be later shown, 
to plain judicial decisions that such laws were void. 

Finally, one other indication of how widespread 

was the belief in the power of the Judiciary in regard 

to unconstitutional laws must be mentioned. This 

instance has not to do with a decision of a court, or 

even the expressed opinion of any governmental 

agency, nor did it happen at a great center of thought, 

20 Plumer's "Plumer," pp. 170-172. I have considered this long 
line of New Hampshire precedents in my article "The American 
Doctrine of Judicial Power, and Its Early Origin," in 47 Amer. 
Law Review, pp. 684-688, and have there stated how much I was 
indebted in the matter to the aid of the late Albert S. Batchellor, 
the well-known editor of the New Hampshire State Papers. See 
his "New Hampshire Provincial Papers," Vol. VII, pp. 2, 199, 
200, 221, and his introduction to Vol. I of the "New Hampshire 
Laws," pp. 49, 50, 520, 710, 859-879. See also Oliver M. Dicker- 
son's "Colonial Government," p. 273 and generally. 



76 THE RELATION OF THE 

where new ideas, good and bad, are most likely to find 
expression, but in the very fact of its occurrence in 
an outlying district, — among a number of young men 
whose lives still lay before them, and some of whom 
later had careers of distinction, — is to be found the 
strongest proof of the sturdy growth by this date of 
the American Doctrine of Judicial Power. 

In Danville, Kentucky, there existed from 1786 to 
1790 a debating club which called itself "The Political 
Club." The very existence of the society was for- 
gotten in Kentucky history until late in the following 
century some of its records were found 21 by chance 
among old family papers. Among the club's mem- 
bers, — thirty in number, — was George Muter, Chief 
Justice of the District Court of Kentucky at the time 
of the Club's formation in 1786, and a member of the 
Court of Appeals from 1792 until after 1801, at which 
date he was Chief Justice. 

In this latter year (1801), in Stidger v. Rogers, 22 
the Court of Appeals held that a State statute was in 
violation of their constitution, hence void; and they 
were inclined to think that the same statute changed 
the obligation of a contract, and thereby violated the 

21 By Thomas Speed, who afterwards edited them in "The 
Political Club, Danville, Ky., 1786-179°" ("Filson Club Publi- 
cations, No. 9, 1894" ). I am indebted to T. L. Edelen, Esq., 
of the bar of Frankfort, Ky., for calling my attention to this 
instance, and also to Mr. Alfred Pirtle of Louisville, Ky., the 
present editor of the Filson Club, and to Miss Mary W. Speed 
of Louisville, Ky., the present owner of the papers in question, 
for aid in tracing out the Club's doings. My account of the mat- 
ter is of course taken from the publication mentioned above, 
except where otherwise specified. 

22 Kentucky Decisions, p. 64. 



JUDICIARY TO THE CONSTITUTION 77 

Federal Constitution as well. We shall soon see how 
the Chief Justice may have at least been influenced in 
this matter by some discussions of the Political Club. 
Another member of the Club was Thomas Todd, who 
was appointed to the Court of Appeals in the very 
end of 1 80 1, and had a hand in some of the similar 
decisions soon following on Stidger v. Rogers. 

Still others "conspicuous in shaping the beginnings 
of Kentucky," — members of constitutional conventions 
and so on, — were members of the Club, and with the 
ardor and exuberance of youth, they discussed many 
a knotty problem. Slavery and the slave-trade, the 
proposed United States Constitution, suffrage, the 
form of government for Kentucky, whether there 
should be one or two branches of the Legislature, the 
powders of the second branch, — all these immense 
questions were debated by the Club, and on no less 
than two occasions they discussed the very problem we 
are concerned with : of statutes violating the Consti- 
tution, and of what it was in such a case the duty of 
a court to do. 

The only reference to the Club's existence, apart 
from its long-lost records, seems to be contained in 
the "Diary" of Major Beatty, a paymaster in the 
United States Army, who spent the night at Danville 
on April 29, 1787, 23 and wrote in his "Diary" that he 
had been much disturbed by 

23 The Filson Club publication gives this date as August 29, 
1786, but Miss Speed called my attention to the fact that there 
is certainly an error here, as the Club did not hold its first meet- 
ing until December 27, 1786. After some correspondence, I 
found that the original "Diary" is preserved in the Collections 



78 THE RELATION OF THE 

a Political Club which met in the room next where we 
slept and kept us awake until 12 or i o'clock. . . . The 
dispute was : One side insisted that an "Act- of As- 
sembly was no law when it did not perfectly agree with 
the Constitution of the State." It was opposed by the 
other party, and a very long debate took place. To 
which the editor of the papers adds that the minutes of 
the club contain an account of this very debate, and show 
that the decision of the club was that an Act of Assem- 
bly must be in accordance with the Constitution of the 
State. 

Apparently, this moot point was a favorite one with 
the members, for again on May 5, 1787, they discussed 
the question: "If an Act of Assembly should be con- 
trary to the Constitution, which ought to govern a 
judge in his decision?", and after the debate it was 
resolved : "as the opinion of the club that when an 
Act of Assembly'is contrary to the Constitution, the 
judge ought to govern his decision by the Constitu- 
tion." 

Todd, who later had a share in the early Kentucky 
decisions upon this subject, and who was appointed in 
1807 a Justice of the Supreme Court of the United 
States, was the President of The Political Club dur- 
ing the evening of May 5, 1787. 

It seems impossible to understand the occurrence 

of these discussions among a lot of youths in an out- 

of the New York Historical Society, and Mr. Kelby, the Libra- 
rian, kindly corrected the error for me. He also informed me 
that the "Diary" has been published in the "Magazine of Ameri- 
can History," Vol. I, pp. 175-179, .235-243, 309-315, 380-384, 432- 
438. This publication has the incident in question noted under 
April 29, 1787. 



JUDICIARY TO THE CONSTITUTION 79 

lying district, far from the swarming hives of men, 
unless the thesis which they were debating was already 
full-high advanced among their countrymen at some 
of the great centers, and had thence filtered out to a 
considerable number bf public men far and wide 
throughout the country. 



CHAPTER V 

RUTGERS V. WADDINGTON. OTHER LIKE CASES IN 
STATE COURTS HOLDING VOID STATE STATUTES IN 
CONFLICT WITH FEDERAL ACTION. CONGRESS 
URGES THE GENERAL USE OF THE JUDICIAL DE- 
PARTMENT TO ANNUL SUCH LAWS OF THE STATES 

During the same period in which were decided the 
cases we have been considering, from about the end of 
the war to the meeting of the Federal Convention, oc- 
curred other matters of vast influence upon the chapter 
of American history with which this book is concerned. 
It was a time of drifting and disorganization, with a 
number of small and very new States or Nations, — 
for such they then were, — legislating in many harmful 
ways, while the Central Government was barely able 
to keep itself alive and to appease the wrath of other 
countries. These years have, not inaptly, been called 
by a well-known writer "The Critical Period. ,, 

Hosts of laws were passed by the States, which led 
to imbroglios at home or abroad, but the ones which 
chiefly concern us here, — because (as will shortly be 
seen) they inevitably drove America still further on 
the road towards her doctrine of Judicial Power, — 
were those which violated treaties made with foreign 
countries, particularly the Treaty of Peace. 

80 



JUDICIARY AND CONSTITUTION 81 

Laws in contravention of the Treaty of Peace with 
Great Britain, — or at least strenuously objected to by 
the latter Power upon that ground, — existed in nearly 
all the States, and were a most serious handicap to 
those who administered our General Government. 
Thirteen States with popular Legislatures, interspersed 
of course with time-serving demagogues, whose chief 
aim in public affairs was to make themselves solid with 
the masses, and who were often lamentably ignorant 
of international relations and of the obligations of 
faith and honor which they carried, were not calculated 
to lead to a strict adherence to promises made in 
treaties negotiated by the weak and far-removed Cen- 
tral Power. 

America then made a bad name for herself ; and the 
leading men in Congress were often at their wits' end 
to decide what to do. Knowing well these violations 
of treaties, often confronted with bitter complaints 
from foreign countries that prior treaties had been 
repeatedly deprived by the States of all actual effect, 
the administrators of our foreign affairs had indeed 
a hard task. Madison spoke in the Federal Conven- 
tion of the violations by the States of 

the law of nations and of treaties, which, if not pre- 
vented, must involve us in the calamities of foreign wars. 
[And went on] ... the files of Congress contain com- 
plaints already from almost every nation with which 
treaties have been formed. 1 

1 Elliot's "Debates," Vol. V, p. 207. 



82 THE RELATION OF THE 

The evil was crying and called aloud for amend- 
ment, but there was not power enough vested in the 
Central Government for it to be able to enforce its 
wishes. The subject was discussed in Congress, at 
least as early as 1783, and there can be no doubt that 
the method of cure was long and often talked of 
among leading men. It is certainly most noteworthy 
that the governmental agency finally and knowingly 
fixed upon by Congress, in order to be certain of get- 
ting rid of these unauthorized and unconstitutional 
laws, was- — as we shall later find to have been the 
case, — the Judiciary. 

Before coming to this, however, it will be necessary 
to consider the case of Rutgers v. Waddington and to 
show what was done in the matter by the Judiciaries 
in several States, of their own motion. In the first 
place it must be* noted that these cases were not the 
same in principle as the ones which have been exam- 
ined in the prior Chapter. All of these latter were 
concerned with a conflict between a statute and the 
Constitution of the State itself, to which the Court 
making the decision also belonged. Those now in hand 
were instances of a conflict between a State statute and 
a proceeding of the Central Power, authorized by all 
the States. The difference is, of course, important, 
and the existence of this second class of conflicts in 
our midst was beyond doubt one of the chief causes, 
which led our ancestors to look to the Judiciary in 
all such cases. It was absolutely necessary to devise 
some means by which State laws violating the Federal 



JUDICIARY TO THE CONSTITUTION 83 

authority could be quietly set aside, or a General Gov- 
ernment was impossible. 

Rutgers v. Waddington, which has already been 
mentioned, was the first case of the kind, and was by 
far the most conspicuous. It excited intense interest 
in New York, where it was decided, and, beyond all 
doubt, knowledge of the decision traveled far and 
wide. Yet the case does not seem to have been at 
all distinguished at the time from those in which an 
incompatibility of a State statute with the Constitu- 
tion of the same State lay at the bottom of the trouble. 
The decision of the case presented the gravest diffi- 
culties, in that the judgment to be entered might well 
be one to add fuel to the fire of British dissatisfaction 
at real and alleged violations by us of the Treaty of 
Peace. 

Rutgers v. Waddington 2 was decided by the 

Mayor's Court of New York City in 1784. It was 

an action of trespass, brought under a recent State 

statute, to recover rent for a brewery, which had been 

held by the defendant under the orders of the British 

military leaders (and to whom rent had already been 

paid), during the occupation by the British. The 

ground of the decision against the claim was certainly 

not made very clear by the court, and to the public 

the main point was that a statute of the Legislature, 

passed for a very express purpose, was largely frit- 

2 An account of the case was published in 1784 in pamphlet 
form, and in 1866 this was reprinted, with a valuable "Historical 
Introduction," by Henry B. Dawson. My text is based entirely 
on the latter publication, except in the few instances in which 
I have stated otherwise. See also Coxe's "Judicial Power," etc. 
pp. 223-233, for another resume based mainly on Dawson. 



84 THE RELATION OF THE 

tered away by interpretation. It seems clear that the 
more honest course would have been to declare openly 
that the statute was no longer valid as to any parts 
which conflicted with the terms of the Treaty of 
Peace made by Congress in pursuance of its undoubted 
powers. The Court, however, probably obsessed by 
the picture distinguished counsel had evidently drawn 
of the serious consequences which might follow the 
decision of the case, had recourse to what is sometimes 
called "the equity of the statute," and strained the 
principles of the law in a labored effort to demonstrate 
that there was no conflict between the statute and the 
Treaty of Peace. They sought thus to avoid a clash 
either of the State with Congress or of the Judiciary 
with the State Legislature. 

The New York law of March 17, 1783, had been 
passed after the British army had sailed for England, 
and when impoverished refugee Americans were re- 
turning home. There could be no doubt of the inten- 
tion of the Legislature; little doubt that the law was 
an improper one, and none whatsoever, that, under 
the terms of the Treaty of Peace, 3 the State statute 
would lead to bitter complaints by the English. It 
authorized in plain words a suit in trespass by any 
refugee owner, who had remained an adherent of the 
patriot cause, to recover rent from those who had oc- 

3 The provisional treaty had been signed at Paris on Novem- 
ber 30, 1782, but the definitive treaty not until September 3, 1783, 
— after the passage of the New York Law. The treaty was rati- 
fied by Congress on January 4, 1784. It contained language by 
which any claims of citizens of either country to retribution or 
indemnity were released. 



JUDICIARY TO THE CONSTITUTION 85 

cupied his real estate during the possession of the 
city by the British, and it very specifically provided 
that "no defendant . . . shall be permitted to plead 
in justification any military order or command of the 
enemy. ,, 

In reply to the plaintiff's claim, the defendant 
pleaded that he was "a British subject, a merchant, 
residing in an enemy's city, under the protection of 
the British army, by whom it had been conquered, " 
and that on a given date the Commissary General had 
taken possession of the premises in question "by virtue 
of authority from the Commander-in-Chief," and that 
subsequently the defendant had occupied them under 
a license and permission from the Commissary Gen- 
eral, while still later he had held them under a license 
and permission from the British Commander-in-Chief 
at a rent of £150 per annum. And he further pleaded 
that under the Treaty of Peace and according to the 
general rules of international law, any claim which 
citizens of either country might have had to retribution 
or indemnity was relinquished and released. The 
plaintiff's replication set up the provision of the stat- 
ute : that no defendant should be allowed to plead any 
military order in defense. There were then demur- 
rers by both sides. 

It is apparent that Rutgers v. Waddington pre- 
sented questions of the utmost seriousness. The 
Court, — one of very minor jurisdiction, and largely 
confined to matters of police, — wrote that the case 
was represented as being of "high importance," be- 
cause of involving questions which must affect the 



86 THE RELATION OF THE 

"national character"; and all this seems to have had 
its effect, and to have led the judges to seek far and 
wide for some means of escape from the threatening 
difficulties. 

The case was elaborately argued upon the demur- 
rers on June 29, before "a crowded and attentive audi- 
tory/' no less than seven counsel being orally heard. 
The plaintiff was represented by Egbert Benson, the 
Attorney-General of the State, and three other law- 
yers, while such great luminaries as Alexander Ham- 
ilton, Brockholst Livingston, and Morgan Lewis were 
all for the defendant. And we need not wonder at 
this array of counsel, for Rutgers v. Waddington 
seems to have been regarded as a test-case, and many 
other like ones were either pending or ripe for suit. 
Hamilton tells us that there was a general opinion, 
"embracing almost our whole bar, as well as the pub- 
lic/' that it was useless to defend against such claims, 
and he adds that judgments were consequently en- 
tered against the defendants in other suits, or 
compromises made, without serious contest. He 
alone, he says, took the opposite view "and opposed 
the Treaty to the Act"; but even after his brilliant 
(though partial) victory, he so feared the result of a 
writ of error 4 that Rutgers v. Waddington itself and 

4 "Though I was never overruled in the Supreme Court," he 
wrote, "I never got my point established there. I effected many 
compromises to [sic] my clients, afraid myself of the event 
in the Supreme Court, and produced delays until the exception- 
able part of the act was repealed. The Supreme Court fre- 
quently, in a studied manner, evaded the main question, and 
turned their decision upon the forms of pleading." Hamilton's 
"Works," by J. C. Hamilton, Vol. V, pp. 106-137: see especially 
pp. 115, 116. Ibid., Vol. VII, p. 199. 



JUDICIARY TO THE CONSTITUTION 87 

other like cases in his hands were, under his advice, 
settled by compromise. 

The Mayor, who presided in the Court, was James 
Duane, a lawyer and a man long distinguished in 
public affairs. 5 With him sate Richard Varick, the 
Recorder, and five aldermen. Duane rendered a most 
elaborate opinion on August 27, but it is so labored 
that it is no easy task to grasp very definitely what 
was the ground on which the Court really rested, 
while a great part of the opinion is hardly to be sus- 
tained in law. 6 Much was said of whether the plain- 
tiff's case was within the intent of the statute, and of 
"whether the Law of Nations gives the captors and 
Defendant under them rights which control the opera- 
tion of the statute and bar the present suit"; and, 
again, of whether the Treaty of Peace implied such an 
amnesty as to past actions as released the defendant; 
but the Court relied mainly on its belief that the Law 
of Nations did give the captors of a hostile city the 
right to occupy houses and to lease them for strictly 
military purposes, and interpreted the statute as not 
meant to include any one acting in pursuance of such 
right. The opinion reads : 

Whoever then is clearly exempted from the operation 
of this statute by the law of nations, this court must take 

5 In 1789, Duane was appointed United States District Judge 
in New York, and in 1792 was one of the judges to hold the 
Invalid Pension Act of that year unconstitutional. See infra, p. 

17a 

6 It has been shown in the preceding chapter (p. 73, ante) that 
Lord Mansfield, when consulted, wrote the Mayor that, in his 
opinion, the Law of Nations could never be pleaded against a 
Law of the Land. 



88 THE RELATION OF THE 

it for granted, could never have been intended to be com- 
prehended within it by the Legislature. 

This interpretation under what is called "the equity 
of the statute" was the main ground of the decision; 
but it was in the very teeth of the act, and, beyond 
doubt, contrary to its most plain intent. 

One thing is very evident. Whatever was in reality 
the actual basis of the decision, no claim was made in 
words of a right in the Judiciary to question a statute 
passed by the Legislature. To quote Duane's opinion : 

The supremacy of the Legislature need not be called 
into question ; if they think fit positively to enact a law, 
there is no power which can control them. When the 
main intent of such a law is clearly expressed, . . . the 
Judges are not at liberty ... to reject it: for this were 
to set the judicial, above the legislative which would be 
subversive of all government. 

But when a law is expressed in general words, and 
some collateral matter, which happens to arise from those 
general words, is unreasonable, there the judges are in 
decency to conclude, that the consequences were not 
foreseen by the legislature; and therefore they are at 
liberty to expound the statute by equity, and only quoad 
hoc to disregard it. 

The principle was undoubtedly sound, but its ap- 
plication by the Court was surely less so. To argue 
that the question whether this very specific statute ap- 
plied to the defendant's case was a collateral matter, 
happening to arise under the statute, was carrying in- 
terpretation far beyond its utmost limit, for plainly 



JUDICIARY TO THE CONSTITUTION 89 

such was the very main purpose of the law, and the 
statute could otherwise have little to operate upon. 7 

The case did not go by without reference to the doc- 
trine of Coke, which has been so often mentioned in 
these pages, and which was so popular among our 
ancestors; counsel for defendant arguing that this par- 
ticular statute came within its rule that statutes 
against law and reason are void. And, again, another 
relic of past beliefs, which has also been referred to, 
came out when the Court, in its rather extravagant 
laudation of international law, expressed the opinion 
that the primary law of nations is but the law of na- 
ture, and that no state can prejudice or alter any part 
of such law. But it was admitted that this did not 
extend to those portions of international law which 
prevail merely by tacit consent. 

Much was written, too, of the question whether the 
occupation of plaintiff's premises had or had not been 
for military purposes; and the opinion was clear that 
any occupation for other purposes would not relieve 
the defendant. The license of the Commissary Gen- 
eral was held to be mere usurpation, for such authority 
belonged, under international law, only to the Com- 
mander-in-Chief, and "the rights of the British Gen- 

7 The opinion (pp. 39-41) shows that counsel had put instances 
which the broad language of the Act included, but which were 
plainly not meant to be within the Act. The case of American 
prisoners of war incarcerated by the British in houses in New 
York is mentioned by the Court as one of these, and the ques- 
tion asked whether they are liable to the owners for rent, but 
the illustration, — though a good enough one of an instance in 
which a Court cannot follow absolutely the literal words of a 
statute, — has no real bearing on the main question. 



90 THE RELATION OF THE 

eral . . . could only be communicated by his immediate 
authority." 

The decision finally arrived at was a half-way one, 
and held the defendant liable for the period during 
which he had held under the Commissary General, but 
not liable for his term directly under the Commander- 
in-Chief. International law, it was said, recognized 
the right of the latter to use the premises and to lease 
them, and the Court would presume that the Legisla- 
ture did not mean to violate this principle, which (so 
the Court said) could be violated by no nation, and far 
less by any one of our States, whose powers as to ex- 
ternal matters were vested in Congress. 

Rutgers v. Waddington cannot, therefore, be classed 
among the decisions of the period, which claim a right 
for the Judiciary to inquire into the constitutionality 
of laws. The language of the opinion expressly re- 
nounced any such claim ; and it does not seem possible 
to formulate in words what was the effect of the judg- 
ment, in the technical sense of lawyers and the law. 
But the ultimate technical sense of a judicial ruling 
is not always that which has the greatest influence, and 
the most palpable point about this case was that, pre- 
cisely as in cases where the right of the Judiciary was 
broadly claimed, a plain and positive statute was 
largely set aside by the Court, and a very different rule 
of law applied. This was, of course, the feature which 
appealed to the multitude, unlearned in the law. Their 
statute was blotted out of existence. 

Nor was it only the uneducated to whom this result 
was the striking fact in the case. The public in general 



JUDICIARY TO THE CONSTITUTION 91 

so regarded the matter, and the decision excited great 
interest among large numbers of people. On Sep- 
tember 13, a mass-meeting was called in New York to 
consider the subject, and a committee appointed to 
draw up an "Address to the People of the State. " 
This committee, of which Melancthon Smith was one, 
published a long address, 8 summing up the procedure 
and then going on to say : 

From this state of the case it appears that the Mayor's 
Court have assumed and exercised a power to set aside 
an Act of the State. . . . That there should be a power 
vested in the Courts of Judicature, whereby they might 
control the supreme Legislative power we think is absurd 
in itself. 

Nor did the matter go unnoticed at the meeting of 
the Legislature in October, but resolutions were passed, 
by 25 to 15, that the decision was subversive of all law 
and good order, because 

If a Court . . . may take upon them to dispense with 
and act in direct violation of a plain and known law 
of the State, all other Courts, whether superior or in- 
ferior, may do the like; and therewith will end all our 
dear-bought rights and privileges, and Legislatures be- 
come useless. 

Another resolution, calling for the appointment of 

a Mayor and Recorder who should govern themselves 

by the known laws of the land, was defeated by 9 

votes to 3 1 . 

8 Reproduced in Dawson's pamphlet from The New York 
Packet and the American Advertiser of November 4, 1784. 



92 THE RELATION OF THE 

It may, in conclusion, be safely said of Rutgers v. 
Waddington that, in spite of the fact that the Court 
by no means claimed the power since possessed by our 
American courts, its action came at least very close, 
as a matter of fact, to assuming and exercising such 
power, and the public in general so regarded the case. 
It was thus highly educative, and so constitutes a mile- 
stone in the general history of the matter. 

The specific point actually presented on the record 
was the question: What was to be done when the 
rights involved in a law-suit were found to depend 
on the provisions of a State statute, which were in 
conflict with some authorized action of the Central 
Government ? This was at that time a vital question 
to America, on account of the serious disputes with 
Great Britain in regard to the Treaty, and its consid- 
eration was by net means confined to the Courts. 

Congress considered in several instances the subject 
of violations of the Treaty of Peace. On May 30, 
1783, Hamilton reported 9 from a committee consisting 
of himself, Ellsworth, Izard, Madison, and Hawkins, 
which had been appointed to inquire what further steps 
were proper to be taken for carrying into effect the 
stipulations of the Treaty of Peace. The resolutions 
which they proposed recited the 4th, 5th, and 6th 
clauses of the Treaty 10 and the desire to give them 
speedy effect ; and then went on that the several States 
"be required, and they are hereby required to remove 

9 "Journals of Congress," ed. of 1823, Vol. IV, pp. 224, 225. 

10 These provided respectively that creditors should meet with 
no lawful impediment to "the recovery of the full value of all 
bona fide debts" ; that Congress should earnestly recommend to 



JUDICIARY TO THE CONSTITUTION 93 

all obstructions which may interpose in the way of 
the entire and faithful execution of the 4th and 6th 
articles, " and again earnestly recommend them to take 
into serious consideration the 5th article and to con- 
form to it in a spirit of moderation. The resolutions 
were, however, committed, and do not seem to have 
come up again. 

But when, on January 14, 1784, the definitive Treaty 
was ratified and proclaimed, a resolution was passed 
in conformity with a clause of the treaty, recommend- 
ing to the Legislatures of the States to provide for 
the restitution of confiscated property, and that they 
should revise their laws in the premises, so as to con- 
form to justice and equity. 11 This resolution was sent 
to all the States; and on May 3, 1786, in pursuance of 
the directions of Congress, the Secretary for Foreign 
J r airs wrote a circular letter to the Governors, in- 
ing in regard to their compliance therewith. 1 ' 2 
, we must leave the halls of Congress for the 
moment, in order to inquire what had been done mean- 
while in the States. 

Their action in the matter is most striking; for in 

several the Courts had held that State laws, which 

violated the Treaty, were of no validity, because of 

such violation, and had declined to enforce them. These 

rulings have largely fallen into oblivion, and they were 

the States the restitution of confiscated property, and the revi- 
sion of all laws regarding the same; and that no future con- 
fiscation should be made nor any prosecution begun against any 
one because of the part taken by him in the war. 

11 Ibid., pp. 323-327. 

""American State Papers, Foreign Relations," Vol. I, p. 228, 
appendix No. 31. 



94 THE RELATION OF THE 

probably never widely known ; but their existence seems 
to be beyond doubt. In his long letter 13 of May 29, 
1792, to the British minister, defending our general 
course, Jefferson wrote that "treaties made by Con- 
gress according to the Confederation were superior to 
the laws of the States," and then went on to detail in- 
stances in which this had been held. In Rhode Island, 
he wrote: 14 

The attorney for the U. S. in that state, speaking of an 
act passed before the treaty, says, "This act was consid- 
ered by our courts as annulled by the treaty of peace, 16 
and subsequent to the ratification thereof, no proceedings 
have been had thereon." 



The Governor of Connecticut, he added, wrote that 

the Vlth article of the treaty was immediately observed 
on receiving the same with the proclamation of Con- 

13 Jefferson's "Writings" by Paul Leicester Ford, Vol. VI, pp. 7 
et seq., or "American State Papers (Foreign Relations)," Vol. I, 
pp. 201 et seq. Mr. Ford has printed an early draft of the let- 
ter, with comments made by some to whom it was submitted; 
while the State Papers contain the letter as sent, with many 
appendices which are useful to us here. My account and quota- 
tions are from the Writings, except where I have noted other- 
wise. Jefferson's view as to the superiority of treaties to the 
laws of the States was not devised in order to make out his 
case and deceive the British minister. He had written John 
Adams from Paris on Feb. 23, 1787 : "It has accordingly been 
the decision of our courts, that the confederation is a part of 
the law of the land, and superior in authority to the ordinary 
laws, because it cannot be altered by the legislature of any one 
state," John Adams's "Life and Works," Vol. IV, pp. 579, *8b. 

14 "Writings," Vol. VI, p. 43, or "State Papers," Vol. I, Appen- 
dix No. 19, pp. 224, 225. 

15 Italics in original. 



JUDICIARY TO THE CONSTITUTION 95 

gress; the Courts of justice adopted it as a principle of 
law. 15 No further prosecutions were instituted against 
any person who came within that article, & all such 
prosecutions as were then pending were discontinued. 16 

In Pennsylvania, Jefferson went on, the Attorney 
for the United States said that 

the Judges have uniformly, and without hesitation, de- 
clared in favor of the treaty, on account of it's [sic] 
being the supreme law of the land. On this ground, they 
have not only discharged attainted traitors from arrest, 
but have frequently declared that they were entitled by 
the treaty to protection. 17 

The attorney in New York wrote, so Jefferson 
summed up that official's report, that 

tl act of 1782 of that state relative to the debts due to 
f ons within the enemy's lines was, immediately after 
L reaty, restrained by the Superior courts of the 
^w. 5 from operating on British creditors, and that he 
did not know a single instance to the contrary. 18 

Even Rutgers v. Waddington, of which complaint 
had been made, was, Jefferson added, "a proof that the 
courts consider the treaty as paramount to the laws 
of the states." 

In Maryland, though a law had earlier compelled 

* "Writings," Vol. VI, p. 43, or "State Papers," Vol. I, Ap- 
pendix No. 18, p. 224. 

17 "Writings," Vol. VI, p. 43. And see Respublica v. Gordon, 
1 Dallas, p. 233. 

18 "Writings," Vol. VI, p. 44. 



96 THE RELATION OF THE 

those owing debts to British subjects to pay them to 
the State, 

yet the judges of the State General Court decided that 
the treaty not only repealed the law for the future, but 
for the past also, and decreed that the defendant should 
pay the money again to that British creditor. 

And in Virginia, so Jefferson was told by men of 
eminence, 

both court and counsel there avowed the opinion that the 
treaty would control any law of thew State opposed to it. 19 

It must next be shown what further was done in 
the matter by Congress. The resolution of January 
14, 1784, calling upon the States to revise their laws 

19 Ibid. Massachusetts had also reached much the same conclu- 
sion (Jefferson's letter to Hammond, ut supra, p. 62), and her 
ruling in this matter seems to be the instance referred to in 
the letter, — well known to students of this subject,— of J. B. 
Cutting to Jefferson, dated July 11, 1788 (Bancroft's "Constitu- 
tion of the United States," Vol. II, p. 472, or "Proceedings of 
the Mass. Histor. Society," 2d series, Vol. XVII, p. 507). This 
decision, as stated by Cutting, seemed to be on all fours with 
Holmes v. Walton and Trevett v. Weeden, but A. C. Goodell, 
Jr., editor of the "Acts and Resolves of the Province of Massa- 
chusetts Bay," identified it (Harvard Law Review, Vol. VII, 
pp. 415-424) as probably one in which the State Courts held void 
certain "Resolves" of their Legislature denying interest dur- 
ing the war to British creditors, as being in conflict with the 
Treaty of Peace. This view of Mr. Goodell is further strength- 
ened by Jefferson's letter to Hammond (ubi supra), where he 
writes of Massachusetts' course as to the vexed question of 
interest during the war, and says that her courts changed their 
ruling upon the subject, and in the end held that such interest 
was recoverable, — much as the cases found by Mr. Goodell seem 
to show. 



JUDICIARY TO THE CONSTITUTION 97 

so as to make them conform to the Treaty, and the 
letter of May 3, 1786, from the Secretary for Foreign 
Affairs to each State, asking what had been done in 
compliance therewith, have been mentioned. How- 
ever, before many answers came in to this inquiry 
Congress took another step in the matter, which is 
most indicative in regard to the subject-matter of this 
book. They recommended that all the States should 
adopt very closely the method, which (as has just 
been shown) some of the State Judiciaries had adopted 
ex mero motu suo, and that all should pass a statute 
in the same words, 20 directing their courts to hold 
void any law of their particular State found to be in 
conflict with the Treaty. 

This resort to the Judicial Department in such a 
latter would have been in the highest degree unlikely 
any people who had not our history back of them, 
to us it was almost second nature, for use had, 
^e great poet says it will, bred a habit in us. Though 
nothing, so far as I know, shows affirmatively the in- 
fluences which guided the members of Congress in 
their action, yet it can hardly be doubted that the 
recent decisions of the Courts in some of the States, 
which have been mentioned, were the immediate ex- 
citing causes, while back of this lay the beliefs and 

20 Called by Brinton Coxe ("Judicial Power," etc., pp. 274, 275, 
et seq). "The Identical Law," under which name I shall refer 
to it in later pages. It was a sort of predecessor of the 
"uniform laws" of modern days. All the States except New 
Hampshire were probably represented on this vote. Varnum, 
of Trevett v. Weeden fame, represented Rhode Island. Frank E. 
Melvin's "The Judicial Bulwark of the Constitution" in The 
Amer. Polit. Science Review, Vol. VIII, p. 173. 



98 THE RELATION OF THE 

the occasional actions of our people almost since their 
foundation. 

Congress unanimously recommended on March 21, 
1787, that each State should enact a law in the fol- 
lowing words : 

Whereas certain laws made and passed in some of the 
United States are regarded and complained of as re- 
pugnant to the treaty of peace with Great Britain . . , 
And whereas justice to Great Britain, as well as regard 
to the honor and interest of the United States, require 
that the said treaty be faithfully executed, and that all 
obstacles thereto, and particularly such as do or may be 
construed to proceed from the laws of this state, be ef- 
fectually removed. 

Therefore be it enacted by [whatever the State's name 
be] and it is hereby enacted by the authority of the 
same, that such of # the acts or parts of acts of the legis- 
lature of this state, as are repugnant to the treaty of 
peace . . . hereby are repealed. And further that the 
courts of law and equity within this state be and they 
hereby are directed and required in all causes and ques- 
tions cognizable by them respectively, and arising from 
or touching the said treaty, to decide and adjudge ac- 
cording to the tenor, true intent and meaning of the 
same, anything in the said acts, or parts of acts, to the 
contrary thereof in any wise notwithstanding. 21 

A few days later (April 13) Congress sent this rec- 
ommendation to all the States, with a circular letter, 
which evidences even more plainly their belief as to the 

"Journals of Congress, edition of 1823, Vol. IV, p. 730. 



JUDICIARY TO THE CONSTITUTION 99 

function of the Judiciary in the matter of unconstitu- 
tional laws. It read in part: 

Such a general law, would, we think, be preferable to 
one that should minutely enumerate the acts and clauses 
intended to be repealed : because omissions might acci- 
dentally be made in the enumeration, or questions might 
arise, and perhaps not be satisfactorily determined, re- 
specting particular laws or clauses, about which contrary 
opinions may be entertained. By repealing in general 
terms all acts and clauses repugnant to the treaty, the 
business will be turned over to its proper department, 
viz., the judicial; 22 , and the courts of law will find no 
difficulty in deciding whether any particular act or clause 
is or is not contrary to the treaty. 23 

This recommendation found some response from the 
tes, and the proposed law was in its main features 
adopted by Massachusetts, Rhode Island, Connecticut, 
New. York, Delaware, Maryland, and North Carolina. 
New Jersey and Pennsylvania declared that no law 
existed with them contrary to the Treaty with Great 
Britain. 24 

22 Italics mine. 

23 Journals of Congress, edition of 1823, Vol. IV, pp. 735"73& 

24 Jefferson's "Writings" by Ford, Vol. VI, p. 42, or "American 
State Papers, Foreign Relations," Vol. I, pp. 228-231, Appendices 
Nos. 32-41 and 43. New Hampshire {ibid. Appendix No. 32) 
had already, apparently in response to the resolution of Con- 
gress of January 14, 1784, repealed generally all laws of hers 
repugnant to the Treaty, but had not specifically referred the 
matter to the Judiciary. Massachusetts, Connecticut, New York, 
and Delaware enacted the proposed law almost verbatim, while 
Maryland and North Carolina respectively declared the Treaty 
to be "the supreme law within this State," or "a part of the 



ioo JUDICIARY AND CONSTITUTION 

Six or (if Rhode Island is to be included) seven 
States, therefore, had direct recourse to the Judicial 
Department to decide what laws stood upon their 
statute-books in violation of the Treaty of Peace. The 
Courts were to compare the laws of the State with 
the more fundamental Treaty and, if they found the 
State law in conflict with it, were to enter a decree as if 
the State law had not been in existence. In other 
words, they were to hold that the latter was unauthor- 
ized, that the Legislature had not the power to pass 
it. Such recourse to the courts was most natural to 
us with our history, and it is hardly possible to doubt 
that the conferring and exercise of this function 
greatly tended to establish and confirm the growing 
belief in the right of the courts to hold laws uncon- 
stitutional. 

law of the land," and 'directed their courts to follow it. Rhode 
Island declared it a law of the land, "fully binding upon all 
the citizens of this State," but did not otherwise call upon the 
Judicial Department. 



CHAPTER VI 

REVIEW. BAYARD V. SINGLETON 

An effort has been made in the preceding pages to 
trace out certain public beliefs held among our colonial 
ancestors during the century and a half or so that pre- 
ceeded the beginnings of independence, in so far as they 
seem to have a bearing upon the subject of this book. 
The record is, at best, very incomplete, and has as yet 
been but little investigated by students in the slow turn- 
ing over of the pages of our colonial history; but some 
indications of importance have been found by them, 
and I think that unprejudiced observers will agree that 
those days have been shown to have led directly and 
most naturally to the beliefs and governmental prin- 
ciples of our later years. 

Before going on to the work of the Federal Con- 
vention, it will be well to try and gather together in 
a few words the influences of these earlier days, which 
tended to lead our ancestors towards that Power of the 
Judiciary, with which this book is concerned and into 
which it has been shown that they were rapidly drift- 
ing before May, 1787. 

There are undoubtedly some hints, but no positive 
proof, that colonial courts occasionally exercised that 
very power of finding that a statute of their Legis- 

101 



102 THE RELATION OF THE 

lature was unauthorized by its powers, and hence of 
declining to carry it into effect, with which we are con- 
cerned. One such instance seems even to be pretty 
clearly shown from the English records, and one 
colonial judge, beyond doubt, had the matter in mind, 
and queried what a court ought to do when a pending 
case turned on an unauthorized colonial enactment. 
These indications are, however, far too slight to carry 
conviction, and they cannot possibly be followed up 
now and the truth be discovered from the vast mass of 
records under which it lies deeply buried. 

Other indications are of far greater importance. 
There is demonstration that the courts, and men in 
public life generally, were full of the idea of funda- 
mental principles of justice, which could not be trans- 
gressed by the legislative or any authority, and which 
it was the special function of the courts to exercise and 
to maintain against the Legislature and all other agen- 
cies. As a modern author wrote: "The law of God, 
the law of nature, was looked upon as the true law" 
by the colonists, and all temporal legislation considered 
binding only as it was an expression of this. Or, as 
a writer of the earlier day has been seen to have put 
it, man has the power "jus dicer e only; jus dare, 
strictly speaking, belongs alone to God." 1 

1 Paul Samuel Reinsch in "The English Common Law in the 
Early American Colonies : Select Essays in Anglo-American 
Legal History," Vol. I, p. 413. Justice Gray wrote of Coke's 
similar doctrine that it "was repeatedly asserted by Otis and 
was a favorite in the colonies before the Revolution." Article 
on "Writs of Assistance," printed in Quincy's (Mass.) Reports, 
Appendix I, pp. 395-540: see especially pp. 527, 528. See ante, 
P. 34- 



JUDICIARY TO THE CONSTITUTION 103 

Coke's doctrine in Bonham's case was, too, a leading 
element and, in general nature, very similar to that of 
fundamental principles; and the reader has seen how 
it came to the surface in time, soon finding very con- 
crete expression in Stamp Act days and during the 
early Revolutionary mutterings, when our public men 
were seeking for a ground on which to justify the 
action they had decided upon. 

Again, every one of the colonies was used to hav- 
ing its statutes, though clothed with all the forms of 
law, set aside now and then by a higher power as un- 
authorized by their charter or other organic law, and 
thus coming to be void. They had many a time seen 
apparent laws which they had long struggled to secure, 
and had at last written on their statute-book, come 
to this untimely end, on the very ground of their being 
either illegal or not in accordance with a more funda- 
mental law. They struggled in some instances to save 
these pets of theirs, by reenacting them, or occasionally 
by some indirect device such as the weak will resort 
to in a struggle with the strong. They talked of this 
function, too, knew it well, and at times the opponents 
of a measure warned its advocates that the proposed 
law would be thus held unauthorized. The very word 
unconstitutional, with which we are so familiar, was 
even used, at least in the English records, in this con- 
nection. 

It is remarkable how closely the action of the Privy 
Council, in a few of these cases, resembled the action 
of our American courts in modern days in holding a 
statute unconstitutional, and hence refusing to carry 



104 THE RELATION OF THE 

it out. Thus, Rhode Island passed a law, about 1703, 
to create an admiralty court. The law was objected 
to, and Attorney-General Northey, to whom it was re- 
ferred for his opinion, reported that the charter of 
Rhode Island gave no power to create an admiralty 
court. Thereupon, though the charter did not at all 
provide for a royal veto, the law was recommended for 
disallowance, and then promptly disallowed by the 
King in Council. 2 The ground of the conclusion evi- 
dently was that the law was not authorized by the 
charter, was ultra vires, — as we say to-day of a cor- 
poration's like acts, — or unconstitutional, as we say of 
statutes not authorized by the fundamental law. 

Very much the same result was reached, too, by 
strictly judicial methods, which far more nearly re- 
semble the function of the courts with which we are 
so familiar. It seems that now and then, even in ordi- 
nary law-suits in Westminster Hall, 3 when the decision 
depended upon some colonial statute, the Courts held 
the statute unauthorized, and refused to enforce it on 
this ground. But far more frequent were the instances 
of direct appeals to the Privy Council from a decree of 
a colonial court. Both these classes were quite different 
technically from the disallowance of laws by the King 
in Council, but the result both in cases of disallowance 
and in those of judicial appeals was too much alike 
for any but the scientific student to hold the distinction 

2 Dickerson's "American Colonial Government," p. 235. 

3 1 think such cases are well known to have occurred, but 
am not aware of any direct proof of the matter, except what 
is contained in the opinions of Yorke and Talbot in 1732, and of 
Pratt and Yorke in 1750, quoted ante, pp. 42, 43. 



JUDICIARY TO THE CONSTITUTION 105 

clearly before him. The two classes together num- 
bered several hundreds; and it is as plain as the noon- 
day sun that the voiding of laws passed by the colonial 
legislatures was a very vital matter to the colonists. 
So well known was it, even to the mass of the people, 
that the King's action in the matter was extensively 
used in 1776 as a means of appeal to the popular heart, 
by those who guided movements and wrote the Dec- 
laration of Independence. 

Here was a considerable body of legislative and 
of judicial action, as well as of theoretical belief, 
during colonial times, which could not but tend to 
throw doubt upon the applicability to our Legislatures' 
actions of the British doctrine of the omnipotence of 
Parliament. Nor must it be forgotten that this British 
doctrine was one which the colonists thoroughly de- 
tested. They had had their experience of omnipotence 
and wanted no more of it. A people with this feeling 
ground into them, and accustomed for about a century 
and a half to see the statutes of its legislative author- 
ity set aside in a number of instances as unauthorized, 
and the citizens of which often had a hand in leading 
up to this result, — even discussing whether some 
proposed law T lay within the competence of their law- 
making body or not, — was ripe for the acceptance of 
the belief that their Legislature was strictly limited 
and for the discovery of some agency within their 
own limits which should exercise this function of con- 
trolling the Legislature, when once the connection with 
the British Empire should be severed. 

Nor, as a matter of fact, did many years pass by 



106 THE RELATION OF THE 

after 1776, before the agency in question was found in 
the Courts. The circumstances almost inevitably 
forced the duty upon them; for cases were soon pre- 
sented in which the right of one of the parties to a 
litigation depended upon some statute of the Legis- 
lature passed in direct defiance of plain provisions 
of the fundamental law or Constitution, while the 
other party asserted the provisions of the Constitution 
as his shield and protection, and called aloud for their 
maintenance. On the one side was a statute passed by 
an ephemeral Legislature, on the other side a provision 
of that fundamental Constitution, to which the Court 
and the Legislature both owed their very existence, but 
which the latter had undertaken to violate. If the new 
device of written Constitutions meant anything, — un- 
less the provisions of these instruments were at once 
to be allowed to -drop into inanity as mere unenforce- 
able words, — how could the court do otherwise than 
follow the fundamental law and refuse to carry into 
effect the wrongful, unauthorized, or even directly for- 
bidden, statute? 

They, at least, did quickly follow this course, and in 
a number of instances, scattered throughout our new- 
born country, the Judiciary refused to carry into effect 
laws of their Legislature passed in violation of their 
Constitution. They made then no sweeping claim of 
authority, specially vested in them, to interpret the 
Constitution finally and conclusively for all the great 
agencies of government or for all the world. Their 
claim was much more modest, and merely went -to the 
effect that when they, one of the great agencies, or 



JUDICIARY TO THE CONSTITUTION 107 

Departments of Government, were officially called 
upon to act under a statute, which was asserted by one 
of the parties to the suit to be in violation of the Con- 
stitution, the Court must examine this question for 
itself independently, and that its own action must be 
in accordance with the conclusion at which it arrived. 

Prior pages have shown the instances in which the 
State Courts thus held State laws void, for the reason 
that they violated some provision of the Constitution 
of the State. And it has also been shown that cases 
arose in many different parts of the country, where a 
State law violated the Treaty of Peace or some other 
authorized action of Congress, and was for this reason 
held void. These latter were cases which called im- 
peratively for some cure, or foreign interference by 
war might well have ruined us, and Congress and our 
public men sought persistently for the best way out of 
the trouble. It has been seen that finally, — so far had 
by that time grown the belief in the function of the 
Judiciary to prevent the enforcement of unconstitu- 
tional laws, — Congress recommended the adoption by 
all the States of an "Identical Law," expressly drafted 
for the purpose of referring all such questions of State 
laws violating the Treaty of Peace to the Judiciary in 
each State for decision in ordinary law-suits. 

It would not be easy to imagine a course of action 
that would show more clearly than this does the wide- 
spread belief in the power of the Judiciary, which is 
the subject of this book, and to all the evidence that 
has already been summed up is to be added the asser- 
tion or recognition of the power in a number of in- 



108 THE RELATION OF THE 

stances by courts, in proceedings where the question 
was not technically presented, as well as by other gov- 
ernmental agencies, and even in the private discussions 
of individuals of note. 

Nor was there any let-up in the gathering evidence 
of our American Doctrine. During the very sittings 
of the Constitutional Convention of 1787, to which 
we shall soon turn, still another case directly in point 
was adjudged in North Carolina, again asserting most 
clearly the Power of the Judiciary in regard to un- 
constitutional laws. But Bayard v. Singleton 4 is not 
only instructive from the opinion and the technical 
judgment. It had also back of it a history of several 
years, in which the subject was at times very actively 
debated, and leading men wrote letters so plain that 
he who runs may read ; their design being to convince 
the public in North Carolina of the Judicial Power, 
and to lead to a decision denying effect to certain laws 
of the State. 

During the Revolution many of our States took pro- 
ceedings to confiscate the property of the Tories, and 
the struggle in this matter lasted for a number of years 
after the Peace. North Carolina was one such State, 
and several violent and inexcusable laws having this 
object in view were put upon her statute-books. Ap- 
parently the forfeitures were made under general laws, 
and there was later appointed a Board of Commission- 
ers of Forfeited Estates, whose duty it was to sell the 
lands, the proceeds to go into the coffers of the State. 
Troubles seem to have cropped up in the enforcement 
4 1 Martin, p. 42. 



JUDICIARY TO THE CONSTITUTION 109 

of this system, and, at least after the war was over, 
there was a great deal of opposition among leading 
men to the violent laws that were passed by the Legis- 
lature in the effort to carry through the system upon 
which they had entered. 

At the session of 1785, one such law of a very ultra 
character was passed, which was euphemistically 
called, "The Quieting and Confirming Act." 5 It seems 
that people had not always submitted with due docility 
to the conclusions as to forfeitures reached by the 
Commissioners, but had sought protection in the Courts 
after the sale of their lands by this Board; so the 
Quieting Act was passed, under the provisions of 
which, whenever in an ejectment-suit the defendant 
should file an affidavit that he had bought from the 
Commissioners the suit should be at once, without 
more, dismissed. No inquiry was to be allowed 
whether or not the former owner ever had been a Tory, 
nor even whether he had been the actual owner of the 
lands. All was to be left, as had been decided during 
the passion and hatred of a civil war, under the in- 
spiration, perhaps of jealousy, or envy, and upon no 
better evidence than that of the merest slander dropped 
by many-tongued Rumor. 

Of course, opposition to such a law cropped up 

6 "Public Acts of the General Assembly of North Carolina, 
for 1785," Chapter 7 (Newbern, 1804), Vol. I, p. 396. The 
session began November 19, 1785, but the date of the law is 
not given. The provisions of the statute were modified at 
the session of 1786 by a statute which recited that doubts had 
arisen in regard to the act of 1785, and authorized suits to be 
brought by citizens, provided they did not hold title from any 
one named in the Confiscation Acts (Ibid., Cap. 6, 1786, p. 414). 



no THE RELATION OF THE 

quickly, and it became the center of a long and hard 
contest. James Iredell, — who had been appointed a 
Judge of the Superior Court of North Carolina in 
1777, but who resigned the next year, and was in 1789 
appointed to the Supreme Court of the United States, 
which position he held with honor and credit until his 
death in 1799, — was a leader in this contest. He had 
sided with the colonies during the Revolution, but was 
an Englishman by birth; and doubtless here was one 
cause which led him to oppose an Act sure to bring 
great hardship and the gravest injustice to some of his 
friends and relatives. A correspondent wrote to Ire- 
dell, on January 19, 1786, of 

the wonderful law by which the Assembly have arro- 
gated to themselves the judicial power in all suits regard- 
ing confiscation. How the people at large will like the 
innovation I know not. 6 

And but ten days later Iredell wrote to another cor- 
respondent : 

No consideration under Heaven shall induce me, di- 
rectly or indirectly, to support, countenance or have act 
or part in carrying so infamous a law into execution. 7 

We shall see that he adhered firmly to this resolu- 
tion. 

Still another correspondent wrote to Iredell about 
a month later, denouncing the law in good, set terms, 

8 "The Life and Correspondence of James Iredell," by G. J. 
McRee, Vol. II, p. 132. 
* Ibid., p. 133. 



JUDICIARY TO THE CONSTITUTION in 

and perhaps opening the door of truth in his references 
to their being at the mercy of a set of "greedy and 
rapacious Commissioners," and then went on to urge 
Iredell to action. 

I wish that you could do something more than give 
advice, as I am persuaded that if the Judges are beset by 
the principal gentlemen of the bar in a proper manner, 
they will not venture to go any great lengths. 8 

Perhaps it was more or less in consequence of this 
request that Iredell wrote and published in a New- 
bern paper of August 17, 1786, his well-known letter 
upon the subject in general, over the signature "Elec- 
tor," addressed "To the Public." 9 It is a very remark- 
able paper and shows that its writer saw the whole sub- 
ject very clearly. From whatever source his knowl- 
edge came, Iredell understood the nature and the neces- 
sity of the matter as plainly as it can be shown, so 
far as I know, that any of his countrymen then did. 

The letter referred to the anxiety felt at the time 
their State Constitution was formed, and goes on to 
say that 

It was of course to be considered how to impose re- 
strictions on the legislature, that might still leave it free 
to all useful purposes, but at the same time guard against 
the abuse of unlimited power. We were all, he went on 
in substance, disgusted with the British language of the 

8 Ibid., pp. 137, 138. 

9 Ibid., pp. 145-149. This letter is reproduced in Coxe's "Judi- 
cial Power," etc., pp. 253-258. 



ii2 THE RELATION OF THE 

omnipotence of Parliament, and we felt its mischiefs. "I 
have therefore no doubt but that the power of the As- 
sembly is limited and defined by the constitution. It is 
a creature of the constitution. . . . The great argument 
is, that though the Assembly have not a right to violate 
the constitution, yet if they in fact do so, the only remedy 
is, either by a humble petition that the law may be re- 
pealed, or a universal resistance of the people. . .. . 
[After arguing the insufficiency of these two remedies]. 
These two remedies then being rejected, it remains to be 
inquired whether the judicial power hath any authority 
to interfere in such a case; The duty of that power, I 
conceive, in all cases, is to decide according to the laws 
of the State, It will not be denied, I suppose, that the 
Constitution is a law of the State, as well as an act of 
Assembly, with this difference only that it is the funda- 
mental law, and unalterable by the Legislature, which 
derives all its power from it. One act of Assembly may 
repeal another act of Assembly. For this reason, the lat- 
ter is to be obeyed, and not the former. An act of As- 
sembly cannot repeal the constitution, or any part of it. 
For that reason, an act of Assembly, inconsistent with 
the constitution, is void, and cannot be obeyed, without 
disobeying the superior law to which we were previously 
and irrevocably bound. The judges, therefore, must 
take care at their peril, that every act of Assembly they 
presume to enforce is warranted by the constitution, since 
if it is not, they act without lawful authority. This is 
not a usurped or a discretionary power, but one inevita- 
bly resulting from the constitution of their office, they 
being judges for the benefit of the whole people, not 
mere servants of the Assembly. 



JUDICIARY TO THE CONSTITUTION 113 

The Elector went on to say that the county courts 
have the like power, and that 

the objection . . . urged by some persons, that sheriffs 
and other ministerial officers must do the same, does not 
apply, for the power of judging rests with the courts, 
and their decision is final. Did a sheriff ever refuse to 
hang a man because he thought him unjustly convicted? 

Beyond all doubt, one chief purpose of this letter 
was to influence the Supreme Court of North Caro- 
lina, before which a case had come up at Newbern 
three months earlier (May, 1786), wherein the con- 
stitutionality of the Quieting and Confirming Act had 
been argued, but which case the court had not decided. 
The judges had evidently looked upon the question as 
too serious and too difficult to be disposed of offhand, 
and had held it open for consideration. The case re- 
ferred to was, of course, Bayard v. Singleton. It was 
an ejectment brought by the prior owner, — whose land 
had been forfeited under the Sate laws, — against the 
defendant, who held under a title derived from a sale 
and purchase from the Commissioners of Forfeited 
Estates. The plaintiff was represented at different 
times, — perhaps all through the litigation, — by James 
Iredell, Samuel Johnson, and William R. Davie, while 
the defendant's counsel were Abner Nash and Alfred 
Moore. The case was heard for the first time, prob- 
ably in the end of May, 1786, and the Judges sitting 
were Ashe, Spencer, and Williams. 10 

10 My account of the case at this stage is derived from the 
official report in i Martin, p. 42 et seq.; from the Pennsylvania 
Packet and Daily Advertiser of Philadelphia, July 1, 1786, con- 



ii 4 THE RELATION OF THE 

Defendant's counsel, Nash, at once filed the neces- 
sary affidavit, setting forth that his client had pur- 
chased from the Commissioners of Forfeited Estates, 
and then moved to dismiss in accordance with the di- 
rections of the Quieting Act. This motion, the official 
report, — which was written by Judge Spencer, — re- 
cords, "brought on long arguments from the counsel 
on each side, on constitutional points," but the Court 
held the case under advisement, the same report goes 
on, after remarks not to show a "single sentiment" as 
to the law, These cold and meager details are pieced 
out by the newspaper accounts, which have it that 

The plaintiff's lawyers warmly exclaimed against a 
law, enacted to punish offenses committed a long time 
before its taking place; they argued that it being an 
article of our bill of rights, that retrospective laws are 
oppressive, unjust, and incompatible with liberty, where- 
fore no ex post facto law ought to be made, the Assem- 
bly had clearly exceeded the limits of the power which 
the people in whom all political power is vested, and from 
whom, solely, it derives, had delegated to their represen- 
tatives met in general assembly, and that an act so ille- 
gally passed, was not to be looked on as a law. . . . 

Col. Davie, particularly, sustained these arguments 
with so much warmth and energy, that the grand jury, 
considering his free investigation of the Assembly's con- 
duct, as a criminal step, in its nature injurious to, and 

taining a news item dated "Newbern (N. C), June 7," and 
from the same journal of August 23, 1786, containing a Newbern 
item dated June 1, which speaks of the court's adjournment. 
See also Battle's "Address on the History of the Supreme 
Court," in 103 North Carolina Reports, pp. 445 et seq.; 470, 
471; and Coxe's "Judicial Power," etc., pp. 248-267. 



JUDICIARY TO THE CONSTITUTION 115 

destructive of, and against the peace and dignity of the 
State, presented him on the 27th ult., but the judges, 
either more indulgent, or better acquainted with the 
rights of a lawyer defending his client, or an unpreju- 
diced citizen the liberty of his country, discharged him. 
. . . The defendant's lawyers pleaded that all Acts of 
Assembly were laws, and their execution could not be 
prevented. The judges, unwilling to approve of a law 
which seems unconstitutional, or of disapproving an act 
of the Legislature without the most mature considera- 
tion, have declined giving an immediate decision. 

The newspaper of the later date specifies the fol- 
lowing as part of the language of Davie in his argu- 
ment, for which he was "presented," 

that the act of Assembly . . . was in every respect un- 
just, and expressly against the constitution, that the said 
act was the arbitrary edict of a leading party or faction 
of the Assembly ; and that although it was passed by the 
Assembly, the said act was null and void, and not law; 
and ought not to be obeyed by the people ; or words fully 
to those purposes. That he considered the Assembly and 
commissioners as one, and that they had violently and 
unjustly seized the property of the people, with many 
other assertions, saying "the commissioners were the crea- 
tures of the Assembly." The court took no steps in the 
affair, but it is understood that the Assembly will. 

For a year from this time the case remained quies- 
cent, so far as known. It was during the summer fol- 
lowing this first hearing that Iredell's letter of an 
"Elector" was published, and probably many other 



n6 THE RELATION OF THE 

now forgotten discussions of the case were held in 
one way or another. Doubtless, as has been already 
suggested, Iredell's letter was intended to influence the 
Court, and perhaps it was the cause which led to his 
being taken into the case. Nothing, so far as I know, 
shows that he had any hand in the litigation until the 
second argument in May, 1787, but he seems then to 
have taken the laboring oar at first held by Davie. 
In May, 1787, Davie was far off in Philadelphia, a 
member of the Constitutional Convention. 

The second hearing was on May 30, 11 1787, at New- 
bern, when the official report tells us that Nash's motion 
to dismiss was renewed and that there was a "very 
lengthy debate from the bar." The Court recom- 
mended the parties to consent to a fair decision of the 
property in question by a jury, according to the com- 
mon law of the land, but this proposal, as well as some 
other one of a like nature, failed. 

The official report continues : 

The court then after every reasonable endeavor had 
been used in vain for avoiding a disagreeable difference 
between the Legislature and the judicial powers of the 

11 The Pennsylvania Packet, etc., of June 23, 1787, contains an 
item "Newbern, May 31," reading: "Yesterday was agitated the 
celebrated question — whether the suits brought for the recovery 
of confiscated property should be dismissed, according to the 
act of Assembly called the Quieting Act — when the Court gave 
their opinion in the negative." Prof. William S. Carpenter 
("Judicial Tenure in the United States," Yale University Press, 
1918, p. 19) writes, on the authority of the Maryland Gazette 
of July 3, 1787, that the case was decided on May 29. 



JUDICIARY TO THE CONSTITUTION 117 

state, at length with much apparent reluctance, 12 but 
with great deliberation and firmness, gave their opinion 
separately, but unanimously for overruling the afore- 
mentioned motion for the dismission of the said suits. 

In the course of which the judges observed, that the 
obligation of their oaths, and the duty of their office 
required them in that situation, to give their opinion on 
that important and momentous subject; and that not- 
withstanding the great reluctance they might feel against 
involving themselves in a dispute with the Legislature 
of the state, yet no object of concern or respect could 
come in competition or authorize them to dispense with 
the duty they owed the public, in consequence of the 
trust they w r ere invested with under the solemnity of 
their oaths. . . . 

That by the constitution every citizen had undoubtedly 
a right to a decision of his property by a trial by jury. 
For that if the Legislature could take away this right, 
and require him to stand condemned in his property with- 
out a trial, it might with as much authority require his 
life to be taken away without a trial by jury, and that 
he should stand condemned to die, without the formality 
of any trial at all : that if the members of the General 
Assembly could do this, they might with equal authority, 
not only render themselves the legislators of the state for 
life, without any further election by the people, from 
thence transmit the dignity and authority of legislation 
down to their heirs male forever. . . . 

12 Iredell wrote Spaight in August of the "infinite reluctance 
[with which] the judges came to this decision, [and] what pains 
they took by proposing expedients to obviate its necessity"; see 
infra, p. 121. 



n8 THE RELATION OF THE 

It is interesting, too, to see that, as Brinton Coxe 
pointed out, 13 the Court adopted the argument of 
Varnum one year earlier in Trevett v. Weeden and 
dating back to Vattel that, by passing an act to alter 
the Constitution, the Legislature would at once destroy 
its own existence as a Legislature and dissolve the gov- 
ernment established by the Constitution. 

Nash's motion to dismiss was refused, and there was 
a trial, the report goes on, at which the main question 
was in regard to the right of an alien to hold land in 
North Carolina. Upon the decision of this case, so 
the report concludes, 

twenty-seven others depending in the same court upon 
similar, or less substantial grounds, were all swept off 
the docket, by non-suits voluntarily suffered. 

The triumph was a great one, and it shows very 
clearly how far and how wide the principle lying at 
the base of the decision had by this time spread. 
Judges and counsel were none the less bold men thus 
to tear down a system, doubtless wrongful and un- 
just, but having back of it a strong popular support, 
as well as the overwhelming voice of the legislative 
body. To Iredell is certainly due much of the credit; 
while Davie, the leader at the first hearing, and who 
had been threatened with criminal process for his out- 
spoken denunciation of the law as null and void, was, 
at the time of the second hearing, sitting in the Con- 
stitutional Convention at Philadelphia, and cannot pos- 

13 "Judicial Power," etc., p. 251. For Varnum's argument in 
Trevett v. Weeden, see ante, p. 70. 



JUDICIARY TO THE CONSTITUTION 119 

sibly have forgotten his former argument nor have 
failed to hear of the final result of the case, when 
the Convention still had a mass of work ahead of it. 
The decision in Bayard v. Singleton and the other 
earlier cases pointed clearly enough to a mode of solv- 
ing some of their immensely difficult problems. 

It has been said that some writers hold the view that 
the early decisions refusing to execute an unconstitu- 
tional law remained known to but few, and thus had 
little influence. This has already been clearly shown 
to be a grave error as to some of them, notably Trevett 
v. Weeden and Rutgers v. Waddington, while the 
striking similarity of the arguments advanced by 
counsel has also just been seen. Bayard 77. Singleton, 
too, had much of North Carolina by the ears from the 
early days of the policy in the Legislature, out of which 
it grew, down to the end, when twenty-seven similar 
suits fell with it. Wrangled about in the Legislature, 
discussed in the public papers near and far, — with the 
eminent General Davie threatened with criminal proc- 
ess for his argument, with many hundred acres of 
land doubtless snatched back from the purchasers at 
public sales, — it is impossible to suppose that the deci- 
sion in this particular case remained hidden under a 
bushel. Later pages will show, too, how strangely 
opportune it was for the Convention, and that it 
seemed to come in the nick of time, when the absolute 
veto on all State laws was exciting the gravest discon- 
tent, and the method of judicial control was looming 
up in its place. 



120 THE RELATION OF THE 

Of course, by no means all looked upon Bayard v.. 
Singleton as did Iredell and Davie. Richard Dobbs 
Spaight was a colleague of Davie's in the Convention 
from North Carolina, and utterly disapproved of the 
decision. On August 12, 1787, he wrote 14 to Iredell 
from Philadelphia, telling of the recent reference to 
the Committee of Detail of the resolutions which had 
resulted from the struggles of the Convention, and 
then adding : 

The late decision of our judges at Newbern must, in my 
opinion, produce the most serious reflections in the breast 
of every thinking man and of every well-wisher of his 
country. [After admitting the injustice of some of the 
laws passed and declining to defend them, he goes on 
that it is the judg<^' usurpation of authority that he com- 
plains of. I can find nothing in the Constitution to sup- 
port them, and it would have been absurd and contrary 
to the practice of the world, to grant them powers that 
would have operated as a negative on the proceedings of 
the Legislature]. The State . . . would be subject to 
the will of three individuals, who united in their own 
persons the legislative and judiciary powers, which no 
monarch in Europe enjoys, and which would be more 
despotic than the Roman Decemvirate, 15 and equally as 
insufferable. If they possessed the power, what check or 
control would there be to their proceedings? 

"McRee's "Life," etc., of Iredell, Vol. II, pp. 168-171, or Coxe's 
"Judicial Power," etc., Appendix No. 6, pp. 385, 386. 

15 Evidently this word, should be "Triumvirate," as it is written 
by Battle in his "History of the Supreme Court," 103 N. Oa., 
pp. 472-473. 



JUDICIARY TO THE CONSTITUTION 121 

Iredell in reply wrote to Spaight, August 26 : 16 

In regard to the late decision at Newbern, I confess it 
has ever been my opinion, that an act inconsistent with 
the Constitution was void; and that the judges, consist- 
ently with their duties, could not carry it into effect. 
The Constitution appears to me to be a fundamental law, 
limiting the powers of the Legislature, and with which 
every exercise of those powers must, necessarily, be com- 
pared. [He next refers to the British Parliament and 
its absolute power, so that any act passed by it], not 
inconsistent with natural justice (for that curb is avowed 
by the judges even in England), would have been bind- 
ing on the people. It really appears to me, the exercise 
of the power is unavoidable, the Constitution not being a 
mere imaginary thing. ... It really seems to me the 
danger is the most chimerical that can be supposed of 
this power being abused; and if you had seen as I did, 
with what infinite reluctance the judges came to this de- 
cision, what pains they took by proposing expedients to 
avoid its necessity, you would have seen in a strong light 
how little probable it is a judge would ever give such 
a judgment, where he thought he could possibly avoid it. 
. . . I believe many think as you do upon this subject, 
though I have not heard much said about it, and I only 
speak of the general question, independent of an applica- 
tion to any case whatever. Most of the lawyers, I be- 
lieve, are of my opinion in regard to that. 

By the time of the meeting of the Federal Conven- 
tion of 1787, therefore, three positive and strictly tech- 
nical decisions had been rendered, asserting the Courts' 

16 McRee's "Iredell/' Vol. II, pp. 172-176, or Coxe's "Judicial 
Power," pp. 259-263. 



122 THE RELATION OF THE 

power to hold a State law void, because of not being 
authorized under the State Constitution in as many- 
States (New Jersey, Connecticut, and Rhode Island) ; 
and in New York the decision of the Court in Rutgers 
v. Waddington, though not its reasoning, came to 
much the same result, being generally looked upon 
as setting aside a law that the court thought unauthor- 
ized, without much discrimination in regard to the 
source of the statute and of the more fundamental 
law. In two other leading States, moreover, — Vir- 
ginia and Pennsylvania, — the right of the Judiciary 
had been recognized in the courts, or by other im- 
portant administrative agencies, and in New Hamp- 
shire it had been asserted and, it might perhaps be 
added, recognized. Thus, without including those 
cases turning on* violations of the Treaty, which de- 
pended upon decisions either of the lower courts or 
decisions which have not been preserved, in six States 
out of the thirteen, there had been recognition of the 
doctrine. For a year, too, before the Convention met, 
Bayard v. Singleton had been under discussion in 
North Carolina, and its final decision in favor of the 
judicial power was known to the members of the 
Convention, while their discussions were still in the 
inchoate stage of mere resolutions. Before the dele- 
gates reached their final conclusions, the leaders must 
have often discussed the case, and have known that 
North Carolina was the fourth State to have rendered 
a positive and undeniable decision that the courts had 
the power, and were in duty bound, to refuse the aid of 



JUDICIARY TO THE CONSTITUTION 123 

their arm in the execution of a statute that was, in 
their opinion, in violation of the fundamental law. 

Behind all this, too, lay as a background our history 
in the matter during colonial and early Revolutionary 
days. 



CHAPTER VII 

THE CONSTITUTIONAL CONVENTION OF 1 787. ITS 
ADOPTION OF THE JUDICIAL METHOD OF VOIDING 
UNCONSTITUTIONAL LAWS 

The Convention of 1787 was composed in great part 
of statesmen, — men who had been long in service and 
had been trained in the old school. They did not think 
that one man was likely by a week's "intensive study" 
to work out successfully a new system that would 
change in to to spme branch of the system of law and 
custom, which had grown up by the attrition of thou- 
sands of minds during a long course of years. When 
change became desirable, they were perhaps not quick 
to recognize the need, but they could do so and would 
then approach the matter with care and examine the 
existing system and the defects that had arisen, before 
they ventured to essay the task of creating a new ma- 
chine intended to work better. They were thus not 
often called upon quickly to repeal a law just passed, 
but which was found impossible to administer, nor 
were they forever engaged in explaining that the lan- 
guage they had used did not mean what its words 
plainly imported. The Courts did not have to strain 
every principle of law and all the rules of language, in 
order to avoid grave injustice and not to land in chaos. 

124 



JUDICIARY AND CONSTITUTION 125 

Numbers of the members of the Convention had 
served in Congress and knew the recent, as well as the 
past, history of the country. They knew that our pub- 
lic affairs verged on chaos, that such government as we 
had could not possibly continue, and that we were very 
likely in one way or another to lose even that inde- 
pendence which had been won after such efforts. But 
they knew, too, the exceeding difficulty of amending so 
as to cure, and they did not write out a new Constitu- 
tion off-hand, — as did many Frenchmen about 1789, — 
but went on slowly and laboriously to consider, to com- 
pare views, to meet the essential necessities of the very 
difficult situation, and by this lengthy and wearying 
process, they brought forth an instrument which, what- 
ever may be its fate after the chaos of to-day's war 
is passed, at least guided with eminent success for 
about a century and a quarter the growth and pros- 
perity of a people, very young and powerless at its 
foundation, but since then gone through a lusty youth 
and now among the most powerful and capable on 
earth. 

Nearly every question that came up before the mem- 
bers of the Convention during the months of their 
labor presented great difficulties, but few were so infin- 
itely difficult as that of devising a means, — with some 
chance of adoption, — to control the States and prevent 
them from forever violating the laws and the powers 
of the Central Government. Such laws had been 
passed by the States under the Confederation in hosts 
of instances, and had been the means (as has been 
already shown) of getting us into serious difficulties 



126 THE RELATION OF THE 

with foreign nations. The Treaty of Peace with Great 
Britain had been violated by numbers of the States, 
and the late Mother Country was in high indignation 
at the failure of Tories to receive the treatment which 
she had meant to secure for her late supporters in 
the colonies. Other countries, too, had plenty of like 
causes of complaint. 1 Members of Congress had of 
course seen with especial clearness all the difficulties 
arising from these general causes, and prior pages have 
touched upon the efforts and the plans devised to cure 
such evils while the Confederation lasted. 

It would not be rash to assume that numbers of 
members of the coming Convention compared notes 
and devised plans for solving the problems ahead of 
them; but I know of no proof of this, except in regard 
to some of the delegates from Virginia. That leading 
State had taken an active part in calling the Conven- 
tion, and its members felt a degree of responsibility, 
owing to this cause. Madison evidently gave a deal 
of thought to the matter, and wrote to others outlining 
some of his ideas, and in these letters one of the very 
chief points in his mind was the absolute need of a 
means to control the separate States. He wrote to 
Jefferson (then in Europe) on March 19, 1787, tell- 
ing him of the coming Convention and of some of his 
ideas in regard to it, and giving as his opinion that 
it would be expedient "to arm the federal head with 
a negative in all cases whatsoever on the local Legis- 
latures," 2 

1 See ante, pp. 80-82. 

2 "Works," by Congress, 1865, Vol. I, pp. 284-286. 



JUDICIARY TO THE CONSTITUTION 127 

Randolph was also thinking of the work of the 
Convention, and wrote 3 Madison on March 2,7, sug- 
gesting the introduction of some "general proposi- 
tions" into the body by Virginia. To this letter Mad- 
ison replied on April 8 with cordial approval, 4 detail- 
ing his views at some length, perhaps a little fearful 
that Randolph might not agree with his "centralizing" 
views, but, none the less, setting forth the need of a 
broad control of the States. And, again, to Wash- 
ington Madison wrote 5 but a few days later (April 
16), urging that positive power in all cases which 
required uniformity must be vested in the general Gov- 
ernment, and once more specifying that 

Over and above this positive power, a negative in all 
cases whatever on the Legislative acts of the States, as 
heretofore exercised by the Kingly prerogative, appears 
to me to be absolutely necessary, and to be the least 
possible encroachment on the State jurisdictions. 

When the Virginia deputies arrived in Philadelphia 
they held conferences together and concluded, much 
as Randolph had suggested to Madison, that, owing 
to the prominence of Virginia in the general matter, 
some initiative step might be expected of them. 6 The 
resolutions offered by Randolph on May 29th were the 
outgrowth of these meetings. They contained a rough 
outline of a government, and the 6th and 8th resolu- 
tions read in part as follows: 

3 Conway's "Randolph," p. 71. 

'Elliot's "Debates," Vol. V, pp. 107, 108. 

5 "Works," by Congress, 1865, Vol. I, p. 2S7. 

6 Farrand, Vol. Ill, pp. 539-551, or Elliot, Vol. V, pp. 109-122. 



128 THE RELATION OF THE 

6. That the National Legislature ought to be im- 
powered ... to negative all laws passed by the several 
States, contravening in the opinion of the National Leg- 
islature the articles of Union, and to call forth the force 
of the Union against any member of the Union failing 
to fulfill its duty under the articles thereof. . . . 

8. That the Executive, and a convenient number of the 
National Judiciary, ought to compose a council of revi- 
sion with authority to examine every act of the National 
Legislature before it shall operate, & every act of a par- 
ticular Legislature before a Negative thereon shall be 
final; and that the dissent of the said Council shall 
amount to a rejection, unless the Act of the National 
Legislature be again passed, or that of a particular Legis- 
lature be again negatived by of the members of 

each branch. 7 

I do not know of anything to show who had sug- 
gested the idea of joining the Judiciary with the Exec- 
utive as a Council of Revision, 8 but Madison, at least, 
supported it; and he and a few other members were 
most insistent, down to a very late day, in pressing the 
plan in one form or another, in order to secure the im- 
mediate setting aside of harmful laws. He was evi- 
dently disappointed, too, at the result ; and wrote Jef- 
ferson on Oct. 24, 1787, 9 referring to the general 
power of negative which he had wanted, adding : 

7 Farrand, Vol. I, p, 21. 

8 The idea of such a Council was borrowed from New York, 
Madison said on August 14, Farrand, Vol. II, p. 291. Frank E. 
Melvin's "The Judicial Bulwark of the Constitution/' in The 
Amer. Polit. Science Reviezv, Vol. VIII, p. 167 et seq.; see foot- 
note 23 on page 176. 

9 Farrand, Vol. Ill, pp. 131-136. 



JUDICIARY TO THE CONSTITUTION 129 

It may be said that the Judicial authority under our new 
system, will keep the States within their proper limits, 
and supply the place of a negative on their laws. The 
answer is, that it is more convenient to prevent the pas- 
sage of a law than to declare it void after it is passed; 
that this will be particularly the case, when the law ag- 
grieves individuals, who may be unable to support an ap- 
peal against a State to the supreme Judiciary. 

It will be necessary to follow here to some extent 
the actions of the Convention in regard to joining the 
Judiciary with the Executive as a Council of Revision 
to approve or disapprove of all laws of Congress and 
of the States ; for not only was this idea pressed in one 
form or another by Madison and other leading men 
down to near the adjournment, but some strangely un- 
authorized conclusions have been drawn by certain 
modern writers from its rejection. 

The power contained in the 6th clause of the Vir- 
ginia Resolutions, for Congress "to negative all laws, 
passed by the several States, contravening, in the opin- 
ion of the national legislature, the articles of union," 
was agreed to on May 31. 10 But the 8th clause to 
establish the proposed Council of Revision was a sub- 
ject of discussion, and the joining of the Judiciary 
with the Executive in this function was disapproved 
by 8 States to 2, on motion of Gerry, on June 4. 11 
Gerry could not then have known of the very recent 
decision in Bayard v. Singleton, but he certainly knew 
of other like cases, for he spoke of them, and drew the 

10 Ibid., Vol. I, p. 47. 
n Ibid., p. 104 



i 3 o THE RELATION OF THE 

distinction between the power they asserted to decide 
on the constitutionality of laws, and the idea of making 
the judiciary "judges of the policy of public meas- 
ures." Two days later (June 6), the same Council of 
Revision was again discussed under a motion to re- 
consider, but was once more lost by 3 votes to 8; 12 and 
on June 8 a motion to extend the already granted pow- 
ers of Congress in regard to negativing laws of the 
States, so that they should have power "to negative 
all laws which to them shall appear improper," was 
also lost. 13 

At this stage there seems to be an illustration of how 
strongly the members felt the need of concession and 
compromise, and, again, of how very clear was in 
the minds of some of them the right of the Judiciary 
in regard to unconstitutional laws. On June 10 Ran- 
dolph made a communication 14 for conciliating the 
small States, one part of which was that, though every 
negative of a State law should prevent its operation, 
"any State may appeal to the national Judiciary against 
a negative; and that such negative if adjudged to be 
contrary to the power granted by the articles of Union, 
shall be void," and further that "any individual con- 
ceiving himself injured or oppressed by the partiality 
or injustice of a law of any particular State may resort 
to the National Judiciary, who may adjudge such laws 
to be void, if found contrary to the principles of equity 
and justice." It is, I think, too plain for discussion 
from these proposals that Randolph had already a 

"Farrand, Vol. III. p. 140. 

13 Ibid., pp. 162, 163. 

14 Ibid., Vol. Ill, pp. 55, 56. 



JUDICIARY TO THE CONSTITUTION 131 

pretty clear comprehension of the general idea of judi- 
cial control, and we shall find him 15 later writing an- 
other provision in his draft of a constitution to pro- 
vide for the general exercise of the power by the Judi- 
cial Department. 

The discussion heretofore had been in Committee 
of the Whole, and the Committee's report was made 
on June 13 to the Convention proper. It consisted 
of nineteen resolutions, 16 one of which (the 6th) gave 
power to the national legislature "to negative all laws 
passed by the several States contravening in the opin- 
ion of the National Legislature the articles of Union, 
or any treaties subsisting under the authority of the 
Union." And the 18th resolution contained a pro- 
vision, which looks like one more then unseen indica- 
tion of that doctrine of Judicial Power, which was to 
come later, — that 

the Legislative, Executive, and Judiciary powers within 
the several States ought to be bound by oath to support 
the Articles of Union. 

The plan in general was looked upon by quite a 
number of members, particularly from the small 
States, as highly national and as giving all power to 
a few large States, and the greatest dissatisfaction was 
felt, so that, as Madison wrote, there was at this time 
"serious anxiety for the result of the Convention/' 

The members in opposition had been holding meet- 
ings in the evenings to concert a plan to take the place 

15 Infra., pp. 142, 143. 

16 Farrand, Vol. I, pp. 236-237. 



132 THE RELATION OF THE 

of the proposed system, which they thought so excep- 
tionable. According to Luther Martin, Gerry first 
proposed these meetings ; and Gerry, Mason, the dele- 
gates from New Jersey and Connecticut, part of that 
from Delaware, a member from South Carolina, one 
from Georgia, and Luther Martin attended at 4he dis- 
cussions. 17 It was, of course, as their spokesman that 
Paterson of New Jersey on June 14th told the Con- 
vention that it was the wish of several delegates to 
prepare a plan purely federal, and said they hoped to 
present it the next day. They did so and, though their 
plan 18 adhered largely to requisitions, and was soon 
set aside as a whole by the Convention, yet one clause 
(the sixth) became later of vital importance, for it 
contained the gist of the method which was finally 
adopted to prevent the operation of unconstitutional 
laws of the States. It avoided the negative by Con- 
gress, which was then still contained in the Report 
of the Committee of the Whole, and adopted what has 
since been, if it was not at that very day, called the 
judicial method of voiding such laws. 

The judiciaries of the several States were, accord- 
ing to this proposal, to be "bound ... in their deci- 
sions" by authorized laws or treaties of the Central 
Power, "anything in the respective laws of the Indi- 
vidual States to the contrary notwithstanding/' and the 
federal executive might call forth the power of the 
confederated States to compel obedience. 19 It is highly 

17 Farrand, Vol. Ill, pp. 281-286. 

18 Ibid, Vol. I, pp. 242-245. 

19 The clause as a whole read as follows "6. Resd. that 
all Acts of the U. States in Congs. made by virtue & in pur- 



JUDICIARY TO THE CONSTITUTION 133 

likely 20 that during the meetings of the evening caucus, 
prior to June 15th, the decision in Bayard v. Singleton 
at Newbern on May 30 was known in Philadelphia; 
and, of course, to Gerry and any others who knew 
of the prior like decisions in the country, it pointed 
most clearly to the method they had best propose, and 
enormously emphasized those precedents and their im- 
portance as factors in our public affairs. Whether it 
actually led them to, the adoption of the clause they 
suggested, and which has just been quoted, is of course 
conjecture ; but it may well be that such was the case. 

It is impossible to attribute to the words that the 
judiciaries in the several States shall be bound in their 
decisions by authorized laws and so on, of Congress, 
any meaning but that which has become known as the 

suance of the powers hereby & by the articles of confederation 
vested in them, and all Treaties made & ratified under the 
authority of the U. States shall be the supreme law of the 
respective States so far forth as those Acts or Treaties shall 
relate to the said States or their Citizens, and that the Judiciary 
of the several States shall be bound thereby in their decisions, 
anything in the respective laws of the Individual States to the 
contrary notwithstanding; and that if any State, or any body 
of men in any State shall oppose or prevent ye. carrying into 
execution such acts or treaties, the federal Executive shall be 
authorized to call forth ye power of the Confederated States, 
or so much thereof as may be necessary to enforce and compel 
an obedience to such Acts, or an Observance of such Treaties." 
20 The Pennsylvania Packet of June 23 notices the decision, 
and I know of no earlier publication in regard to it, but private 
letters were probably far more rapid, and some of the friends 
of Davie were likely to let him know at once of the decision 
of a case in which he had been so active. Brinton Coxe 
("Judicial Power," etc., p. 266) estimates that water communi- 
cation between Newbern and Philadelphia might be made then 
in seven or eight days, under favorable circumstances. See 
ante, pp. 109-121. 



134 THE RELATION OF THE 

American Doctrine of Judicial Power, and Luther 
Martin wrote 21 in 1788, in a public controversy with 
Ellsworth, that the very similar proposal which he 
offered to the Convention on July 17 22 was intended by 
him to be in substitution for the power, w r hich the 
Convention had at one time adopted, of a negative 
by Congress on the laws of the States, which he 
deemed to be wholly inadmissible. 

Here is most persuasive evidence that the clause so 
offered by Martin, as well as the like clause of the 
New Jersey Plan, was definitely meant as an adoption 
of the American Doctrine, which prior pages have 
shown had made such strides in our country by this 
date, and there is further circumstantial evidence of 
the meaning of the men who drafted the New Jersey 
Plan. 

The first actual decision asserting the judicial power 
had been rendered in New Jersey in the case of Holmes 
v. Walton in 1780. It was decided by Brearly, while 
Chief Justice of the State, and at the same time Wil- 
liam Paterson was Attorney General; William Liv- 
ingston, Governor, and William C. Houston was the 
next year Clerk of the Court. The Governor was ex- 
officio Chancellor, and there is even direct evidence (if 
any be needed) that he was conversant with the doc- 

21 Farrand, Vol. Ill, pp. 271-275. 

22 It is conceivable that Martin referred to the origin of clause 
6 of the New Jersey Plan, but there is nothing to show who 
made the proposal to the caucus held in June, which became 
clause 6 of the New Jersey Plan presented to the Convention 
on June 15, while Martin did himself make the like proposal 
to the Convention on July 17. Infra, pp. 137, 138. 



JUDICIARY TO THE CONSTITUTION 135 

trine of Holmes v. Walton, 23 and it is at least highly 
likely that Houston 24 also knew of it. These four 
men, — Brearly, Livingston, Paterson, and Houston, — 
were all members of the New Jersey delegation in the 
Federal Convention, and as such it is clear, from what 
Martin wrote, that some, probably all, of them at- 
tended the evening meetings of the caucus that of- 
fered the New Jersey Plan to the Convention on June 
15. It is surely impossible to imagine that they failed 
to bring into the discussion of a caucus aiming to di- 
gest a "purely federal" plan that idea of judicial 
power, which they had seen exemplified in Holmes v. 
Walton, and which is contained in clause 6 of the New 
Jersey Plan. 

Nor is this all. Gerry, who proposed the meetings 
to Martin, was the first member of the Convention to 

^President Austin Scott's article on "The New Jersey Prece- 
dent," in Vol. IV, Amer. Historical Review, or "Rutgers College 
Publications, No. 8." I am indebted to this article for nearly- 
all the facts relating to Holmes v. Walton. 

24 Houston was a member of Congress from 1779 to 1781, when 
he accepted the clerkship of the Supreme Court. He was 
therefore in Congress at the time of the decision of Holmes v. 
Walton, among men likely to hear and talk of it. He had been 
in the army during the war, and Professor of Mathematics at 
Princeton, but studied law and was admitted to the bar in 
1 781. He is shown by the pages of Elliot's "Debates'' to have 
been present in the Convention at its opening, and on July 23rd 
and possibly on the 17th; while a privately printed sketch of 
him by Thomas Allan Glenn, Norristown, 1903 (to which my 
attention was kindly called by his great-grandson, William 
Churchill Houston, Esq., of Philadelphia), says that there is 
every reason to believe that he was constant in attendance. 
He did not sign the constitution, for unknown reasons, but did 
sign the report of the commissioners. Elliot's mention of him 
on July 23 shows that he was present much later than the 
presentation of the New Jersey Plan. 



136 THE RELATION OF THE 

refer in debate (June 4) to the judicial power, and 
nothing can be plainer than his words, while of the 
others who, according to Martin, attended the meet- 
ings, Mason of Virginia, Martin of Maryland, and 
Sherman 25 of Connecticut, all expressed themselves 
the same way long before the adjournment (July 17 
and 21) ; furthermore, Ellsworth and Johnson of Con- 
necticut, Reed, Bassett and Dickinson of Delaware, 
Charles Pinckney of South Carolina, and Few and 
Baldwin of Georgia, — from both of which latter two 
States one member of the delegation attended the meet- 
ings, — have all been found to have, at least not very 
much later in their careers, favored the same view. 26 
Thus, Gerry, Mason, Martin, Sherman, and three (or 
perhaps four) of the five members from New Jersey, — 
at least seven out of the nine who almost certainly 
attended the conferences, — were then, or in a few 
days, in favor of the judicial review. With all this on 

25 Other language used by Sherman at about this same period, 
whatever may have been its exact connection, shows that he 
had a full understanding of judicial control. Among, his papers 
was found a document, which Prof. Farrand thinks probably 
presents the ideas of the Connecticut delegation in forming the 
New Jersey Plan, while others have thought it was offered to 
the Convention. It proposed to grant Congress certain addi- 
tional powers and among these the power "to make laws binding 
on the people of the United States, and on the courts of law, 
and other magistrates and officers, civil and military, within 
the several States, in all cases which concern the common inter- 
ests of the United States" : and it also resolved that "the laws 
of the United States ought, as far as may be consistent with 
the common interests of the Union, to be carried into execution 
by the judiciary and executive officers of the respective States, 
wherein the execution thereof is required." Farrand, Vol. Ill, 
pp. 615, 616. 

26 Melvin's "Judicial Bulwark," ut ante, pp. 185-193. 



JUDICIARY TO THE CONSTITUTION 137 

the record, there can be no doubt of what was intended 
by the 6th clause of the New Jersey Plan, until men 
engaged in a serious business do really use language 
to hide their meaning. 

Little favor was, however, shown by the Conven- 
tion to the New Jersey Plan, and the clause I have been 
considering was not even referred to. After no little 
debate, which was at times pointed enough, the plan 
as a whole was rejected on June 19, with only three 
negatives (New York, New Jersey, and Delaware), 
and the Randolph Plan, as reported from the Com- 
mittee of the whole, was reported without change. 27 

The struggle in the Convention proper, as distin- 
guished from the Committee of the whole, began now 
and was long and often acrimonious. It does not need 
to be much gone into here, and the next step of im- 
portance to us was the refusal of the Convention on 
July 17th, by three ayes to seven noes, to agree to the 
power of negativing the laws of the States, and so 
on. 28 The vote was a most serious defeat for the mem- 
bers who had in general theretofore directed the course 
of events, and must have seemed to them to leave the 
plan shorn of a chief and essential feature. They were, 
doubtless, for a time at a loss what next to do, and 
perhaps there was no little conversation out of order. 
If so, the debates are silent upon the subject, and their 
next record is the offer by Martin of (in effect) the 6th 
clause of the New Jersey Plan. 29 It was at once 

27 Farrand, Vol. I, p. 322. 

28 Ibid., Vol. II, p. 28. 

29 It is of interest to know how Madison entered this resolu- 
tion on his notes. He wrote out at first only his summation of 



138 THE RELATION OF THE 

adopted nem. con., without reported debate, and the 
Convention went on to other parts of the Constitu- 
tion. 

This clause, establishing the supremacy of the laws 
of the Union in the States and binding the State judi- 
ciaries to adhere to those laws in their decisions, de- 
spite contrary State laws, is the one that Martin wrote 
the next spring, — in his controversy with Ellsworth 
in the public papers, — he had offered in substitution 
of the plan of a general congressional negative, which 
he "considered totally inadmissible." 30 

Nor is evidence lacking that as leading a member as 
Madison, strongly opposed though he was to this plan, 
recognized much the same thing, and began at once 
to shape the Constitution in the way that the plan of 
judicial control would require. The very next day 
(July 18), he offered a clause in regard to the jurisdic- 
tion of the courts of the intended government, reading : 

That the jurisdiction of the national Judiciary shall ex- 
tend to cases arising under laws passed by the general 

the substance, taking later from the "Journal" what now appears 
in the "Debates." Prof. Farrand wrote me on April 28, 191 1, 
that Madison's original entry was in the following form : 
"that all the Legislative acts & Treaties made by virtue of the 
Articles of Union, shall be the supreme law of the States, and 
as such shall be observed by their Courts &c." See ante, pp. 
132, 133. 

30 See Martin's letter of March 19, 1788, from the Maryland 
Journal reproduced in Farrand's "Records," Vol. Ill, pp. 286-295. 
Perhaps the present writer may be permitted to say that when, 
in 1899, he wrote in his "Growth of the Constitution" (p. 284) 
of Martin's proposal of July 17 as being "intended as a sub- 
stitute for and to attain the same end as the clause which had 
just been defeated," he had no knowledge of this letter of 
Martin's. Farrand's "Records" had not then been published. 



JUDICIARY TO THE CONSTITUTION 139 

Legislature and to such other questions as involve the 
National peace and harmony. 

This proposal was also unanimously adopted, ap- 
parently without debate. 31 

If there could be any doubt in regard to what the 
Convention was aiming at in all this matter, it is cer- 
tainly removed by the debate of July 21, when Wilson 
again moved, and Madison seconded, a resolution that 
the National Judiciary "should be associated with the 
Executive in the Revisionary power." The proposal 
was discussed at some little length, Luther Martin ob- 
jecting that it would give the Judges "a double nega- 
tive/' as the 

constitutionality of laws . . . will come before the 
Judges in their proper official character [and] in this 
character they have a negative on the laws. 

Mason answered Martin that, as the Constitution 
then stood, the Judiciary could only impede the opera- 
tion of laws in one case, — when they were unconstitu- 
tional, — and he wished them to be able to prevent every 
improper law. Numbers of members spoke of the 
need of controlling the Legislature, or of establishing 
a "check" upon it against the passage of laws for 
paper money, the "remission of debts" or other "unjust 
measures," and the means they had in mind was the 
Judicial Department. The term "judicial control" 
had not yet come into vogue, and was not then used; 
but the idea was very plainly in the mind of Mason 
31 Farrand's "Records," Vol. II, p. 46; and see p. 39. 



140 THE RELATION OF THE 

and others. And Mason at least wanted to extend this 
to the laws of the Central Power, as well as to those 
of the States. He thought it as necessary in the for- 
mer case as in the latter. 32 

In all this matter, Martin was far from aiming at 
that broad power of control over State legislation 
which the Convention finally established. His wish 
was merely to make the supremacy extend to the laws 
of the States, Their constitutions were still to be 
paramount to the laws of Congress, and the whole 
matter was to be administered by the State Judiciary. 
He wanted no inferior Federal Courts, 33 He was ac- 
cordingly opposed when, on July 18, power was con- 
ferred to create such tribunals ; and evidently still more 
so, when the Convention went on and forged, blow by 
blow, that broad system of Federal supremacy which 
has almost completely curbed the States from viola- 
tions of the rights of the Central Power in domestic 
as well as international relations. 

Some writers of modern days have drawn the most 
remarkable conclusions from the rejection on July 17 
of the plan of a Council of Revision, with the Judi- 
ciary forming a part of it. To them the action was 
the refusal to the Judiciary of power to hold a law 
unconstitutional. They probably did not know at the 
time they so wrote that Martin's proposal binding the 
State tribunals to follow in their decisions authorized 
Federal laws, despite contrary State ones, was ex- 

32 Farrand's "Records," Vol. II, pp. 73-80. Melvin's "Judicial 
Bulwark," etc., pp. 177-181. 

33 Letter in Farrand, Vol. Ill, pp. 286-295. 



JUDICIARY TO THE CONSTITUTION 141 

pressly said by him to have been offered in substitution 
for the proposal rejected, and they failed to observe 
certain other matters of a high degree of importance. 
Some few days after Martin's proposal had been 
agreed to, and when the judicial method of curbing 
unauthorized State laws was thus in essence contained 
in the Constitution, it has been seen that leading mem- 
bers (Wilson and Madison) none the less again moved 
on July 21 to add the Judiciary to the Executive in the 
revisionary power. And we shall find that the advo- 
cates of this general form of a Council of Revision 
did not even rest here, but twice again showed con- 
clusively that they meant by this plan something quite 
different from the power to hold laws unconstitutional. 
On July 26 the Convention referred all the resolu- 
tions they had agreed upon to a Committee of De- 
tail, to draw up a Constitution in accordance there- 
with. One of the resolutions (the 7th) was Martin's 
proposal of July 17, while the 20th read 

That the legislative, executive and judiciary powers, 
within the several states, and of the national government, 
ought to be bound, by oath, to support the Articles of 
Union. 

Pinckney's plan and the New Jersey Plan were 
also referred. 34 

This Committee must have worked tirelessly, for 
their task was an arduous one, but on August 6 they 
reported a draft of a Constitution. In it was incor- 
porated, almost in the same words, Martin's proposal 
34 Elliot's "Debates," Vol. V, pp. 375-376. 



142 THE RELATION OF THE 

of July 17th as Article VIII, while the 20th resolution 
recited immediately above became Article XX. The 
powers of Congress were detailed in Article VII, and 
contained the well-known general clause "to make 
all laws that shall be necessary and proper for carry- 
ing into execution the foregoing powers," while Article 
XI, relating to the Judiciary, carried on the 16th reso- 
lution referred, by the provision (of vast moment in 
our discussion and showing plainly the understanding 
and the intent of the Committee of Detail) that "the 
jurisdiction of the Supreme Court shall extend to all 
cases arising under laws passed by the legislature of 
the United States." 35 

It sometimes happens that a proposal that never 
comes to maturity throws a very strong light on a 
complicated proceeding. So it was here, I think. Ran- 
dolph's course in regard to the Constitution was by no 
means free from ground for criticism, but he was 
among the leading members, and very active. As one 
of the Committee of Detail, he drew up in his own 
handwriting a pretty complete outline of a form of 
Constitution, and in this he originally inserted, at 
the end of the clause detailing the Congressional pow- 
ers, a provision that would alone show his intentions 
as to the function of the Judiciary in regard to un- 
constitutional laws but which, when coupled with his 
proposal earlier in the Convention, 36 leaves absolutely 

35 Elliot's "Debates," Vol. V, pp. 376-381. Farrand, _ Vol. II, 
pp. 177-189. The general words of the 16th resolution were 
defined and expanded, but what is quoted in the text contains 
the portions of moment here. 

86 Ante, pp. 130, 131. 



JUDICIARY TO THE CONSTITUTION 143 

no doubt as to them nor, I submit, as to their currency. 
As he wrote : 



All laws of a particular State repugnant hereto shall 
be void ; and in the decision thereon, which shall be 
vested in the supreme court, all incidents, without which 
the general principle cannot be satisfied, shall be consid- 
ered as involved in the general principle. 

And then, as if to show to a doubting later gen- 
eration what he meant, he cancels these words and 
writes over them, ''insert the eleventh article." 37 This 
was the article relating to the judicial power reported 
by the Committee of Detail, which expressly extended 
the jurisdiction of the Supreme Court "to all cases 
arising under laws passed by the legislature of the 
United States." 

Hamilton, too, is plainly on record as having had 
Judicial Control in mind as a desideratum for us. 
Not only would his connection with Rutgers v. Wad- 
dington render this likely, but about the close of the 
Convention he communicated to Madison (not to the 
Convention) "a paper which he said delineated the 
Constitution which he would have wished to be pro- 
posed by the Convention : He had stated the principles 
of it in the course of the deliberations." 38 Article 
VII of this draft of a Constitution treated of the 
powers of the Legislature, and provided in its 6th 
clause that 

"Farrand, Vol. II, p. 144. Meigs's "Growth of the Con- 
stitution/' p. 285. 
^Farrand, Vol. Ill, pp. 619-630. 



144 THE RELATION OF THE 

the laws of the United States, and the treaties which have 
been made under the articles of the confederation, and 
which shall be made under this Constitution shall be the 
supreme law of the Land, and shall be so construed by 
the Courts of the several States. 



But the advocates of a Council of Revision, with 
the Judiciary as a part of it, were not even at this 
late day satisfied; and though the plan reported pro- 
vided plainly for the judicial annulment of unconstitu- 
tional State Laws, yet Madison once more, on August 
15, moved an amendment embodying a Judicial Coun- 
cil of Revision, with the modification that the judges 
of the Supreme Court should separately consider all 
laws, and their separate assent be necessary as well as 
that of the Executive. The proposal was soon nega- 
tived by 3 ayeS to 8 noes, but Gouverneur Morris 
wished that some such check could be agreed to, and 
suggested an absolute negative in the Executive. The 
Convention was, however, growing very impatient, 
and members complained of the endless delays. 

There is some appearance, even after this, of a de- 
sire to adopt in part the wishes of Madison and his 
friends, and proposals were made and referred to 
the Committee of Detail for a Council of State, of 
which the Chief Justice should be part, and, again, 
that the Executive might require the opinion of the 
Supreme Court upon important matters. The Com- 
mittee of Detail reported, too, on August 22 a clause 
to create a Privy Council, of which the Chief Justice 



JUDICIARY TO THE CONSTITUTION 145 

of the Supreme Court should be one member; but the 
proposal was not carried out. 39 

All these efforts to bring the Judiciary in one way 
or another into the enactment of laws hence failed, 
and it is apparent that the Convention had finally set- 
tled itself upon the adoption of the Judicial method, 
by which the enforcement of laws of the States vio- 
lating the Federal power was to be stopped by the 
Judiciary, after their enactment by the Legislatures. 
So the Convention did precisely what it was natural 
for the members to do under these circumstances. 
They went on to perfect the plan they had determined 
upon, precisely as it has already been seen 40 they had 
begun to do under the leadership of Madison on July 
18. On August 23 Rutledge moved to amend the 
provision (then Article VIII, now Article VI, Clause 
2) in regard to the supremacy of the laws of the 
Union, and the judges of the several States being 
bound thereby in their decisions, by prefixing the 
words "This Constitution and" to the words the laws 
of the United States, and so on, so that the provisions 
of the Constitution itself should equally be paramount 
to State laws. The amendment was agreed to nem, 
con. 41 

There remained one other clause of vital moment in 

this same connection. It was not enough to the legal 

confraternity to have provided that the United States 

Constitution and laws should be supreme. The juris- 

89 Farrand, Vol. II, pp. 328, 329, 34h 342, 367; or Elliot, Vol. V, 
pp. 442, 445, 446, 462. 

40 Ante, pp. 138, 139. 

41 Farrand, Vol. II, p. 389, or Elliot, Vol. V, p. 467. 



146 THE RELATION OF THE 

diction of the courts must likewise be expressly so ex- 
tended, in order to make the meaning perfectly clear 
and avoid the possibility of some over-refined dis- 
tinction undoing what was intended. Therefore, 
when the clause concerning the jurisdiction of the 
Supreme Court (then Article XI, Section 3, now r Arti- 
cle III, Section 2) came up on August 2J, Dr. Johnson 
moved to insert here also the words "This Constitution 
and the" before the word "laws." It was plainly 
meant ex majore cautela, and to round out the instru- 
ment they were drafting, by expressly extending the 
jurisdiction of the courts to cover precisely the same 
ground to which the supremacy of the authority of the 
Union had already been extended, so that there should 
be a plain and palpable authorization to the Courts to 
hear and determine such cases. And, as if in order 
to make this intent still more clear, the debates tell us 
that Madison 

doubted whether it was not going too far, to extend the 
jurisdiction of the court generally to cases arising under 
the Constitution, and whether it ought not to be limited 
to cases of a judiciary nature. The right of expounding 
the Constitution in cases not of this nature, ought not to 
be given to that department. 

The motion of Dr. Johnson was agreed to mm. con., 
it being generally supposed that the jurisdiction given 
was constructively limited to cases of a judiciary na- 
ture. 42 

Words could hardly be plainer, and particularly 
Madison's doubt and the reasons given for the unani- 
^Farrand, Vol. II, p. 430. 



JUDICIARY TO THE CONSTITUTION 147 

mous action of the Convention show, beyond cavil, that 
the members then present had by this time come gener- 
ally to realize that the system they were aiming to 
establish was intended to put upon the Judiciary the 
function of weeding out by their decisions at least all 
such laws of the States as should be found to be in 
violation of the Federal powers. 

These two clauses (Article III, Section 2, and Arti- 
cle VI, Section 2, of the United States Constitution) 
were well called by Brinton Coxe 43 the "twin-texts" 
of the Constitution, and it was upon them that he relied 
to demonstrate, — in the portion of his work which he 
did not live to finish, — that the Constitution contains 
express texts providing for judicial competency to 
decide questioned legislation to be constitutional or un- 
constitutional, and to hold it valid or void accordingly. 
That it does this, in so far as concerns legislation of 
the States in violation of the United States Constitu- 
tion, is almost too plain for doubt, and there is the 
most persuasive evidence that it was equally meant to 
weed out unconstitutional congressional legislation. 

In this connection, one fact is vital to be ever borne 
in mind : By this date a number of judicial decisions 
had been rendered in the States, holding void State 
laws which conflicted with their constitution, and 
these had been recognized and approved by men of 
note throughout the country to such an extent that, 
it may fairly be said, the principle was well advanced 
towards general acceptance. And this principle did 

43 "Judicial Power and Unconstitutional Legislation," "Intro- 
ductory Note," pp. III-VIII. 



148 THE RELATION OF THE 

not depend upon anything peculiar in the nature of 
the State governments, but extended in reason to the 
laws of any sovereignty, — at least, to all such as had 
a written constitution. These decisions were, more- 
over, known well enough to many leading members 44 
of the Convention, and of course they passed this 
knowledge on to any of their colleagues who may have 
been less well informed. Such is the very purpose of 
discussion and debate. 

And there is no lack of other evidence of their 
actual intentions. The proposals in Congress, in 1787, 
of what Brinton Coxe called "the identical law" was 
not a sudden outburst from a clear sky but the cul- 
mination of an effort to curb the States, which had 
been making in Congress since at least 1783. It can- 
not be doubted that Hamilton, Madison, and Ells- 
worth, who were* of the Committee of Congress upon 

44 In my article of 1885 (Amer. Law Review, Vol. XIX, p. 184) 
I named Gerry, Gouverneur Morris, Sherman, Wilson, George 
Mason, and Luther Martin as commenting with approval upon 
the doctrine in the Convention, and Ellsworth, Davie, and Ran- 
dolph, members of the Convention, as doing the same thing in 
the Ratifying Conventions. Since then this list has been greatly 
lengthened by Prof. Beard in his "Supreme Court and the 
Constitution," and in Mr. Melvin's "Judicial Bulwark of the 
Constitution" {Amer. Polit. Science Review, Vol. VIII, pp. 185- 
193). Mr. Melvin sums up: "of the fifty-five actual members 
of the federal convention some thirty-two to forty of them, 
that is two-thirds of the Convention and including nearly every 
influential member upheld or accepted the right of the courts/' 
etc. I cannot but think that many of the names so included, 
are included on evidence of actions or opinions too much later 
in date, to prove that such was their opinion in 1787, but these 
gentlemen have added enough to my list, — all of leading or 
prominent men, — to make it formidable and far longer than I 
knew to be the case. 



JUDICIARY TO THE CONSTITUTION 149 

the subject in that year, 45 continued to watch the gen- 
eral subject, and when the Courts of the States began 
of their own accord to make decisions holding void 
State laws that violated the Federal authority, they or 
some of their colleagues doubtless suggested that ap- 
plication of these decisions which was molded into 
the proposed identical law. This law was recom- 
mended at a meeting of Congress, when all the States 
except New Hampshire were present, and when Rhode 
Island was represented by Varnum, of Trevett v. 
Weeden. It received the votes of King, Johnson, 
Madison, Blount, Few and Pierce, — all members of 
the coming Convention. 46 

In regard to Madison's understanding that the Con- 
vention intended to adopt the Judicial Method of 
voiding unauthorized State laws, the evidence is abso- 
lutely overwhelming. He was disappointed at the 
refusal to adopt the Council of Revision plan, with 
power to veto State laws in limine, and wrote to 
Jefferson almost contemporaneously (October 24, 
1787), that 

It may be said that the Judicial authority, under our 
new system, will keep the States within their proper lim- 
its, and supply the place of a negative on their laws. The 
answer is, that it is more convenient to prevent the pas- 
sage of a law than to declare it void after it is passed. 47 

And again in the Virginia Ratifying Convention, 
he used language showing plainly the same understand- 

45 Ante, p. 92. 

46 Melvin's "Judicial Bulwark," etc., pp. 173, 174. 
47 Farrand, Vol. Ill, pp. 131-136. See ante, pp. 128, 129. 



150 THE RELATION OF THE 

ing, that the Judiciary were to curb the States from 
violating the federal powers. 48 

His reminiscences in lateV life are, if possible, even 
clearer and to precisely the same effect. Perhaps, the 
most conclusive is contained in his letter of 1831 to 
N. P. Trist, in which he wrote : 

The obvious necessity of a control on the laws of the 
States, so far as they might violate the constitution and 
laws of the United States, left no option but as to the 
mode. The modes presenting themselves, were (1) a 
veto on the passage of the State laws. (2) A Congres- 
sional repeal of them. (3) A Judicial annulment of 
them. The 1st though extensively favored, at the outset, 
was found on discussion, liable to insuperable objections, 
arising from the extent of the Country and the multi- 
plicity of State laws. The 2d was not free from such 
as gave a preference to the third as now provided by 
the Constitution. 49 

When so leading a man as Madison, whose favorite 
idea in the matter had been defeated, wrote in this 
way of the action of the Convention,— and when we 
remember the crying need of a means to annul State 
laws in violation, of the Federal authorities, as well 
as the course of the Convention in the connection, and 

48 Elliot, Vol. Ill, p. 532. 

49 Farrand's "Records," Vol. Ill, pp. 516, 517. See also the 
same ideas expressed in other words in letter of October 21, 
i^33, to W. C. Rives, ibid., pp. 521-524, and in his "Introduction 
to the Debates,'' ibid., pp. 539, etc., where he writes that "instead 
of the proposed negative, the objects of it were left as finally 
provided for in the constitution." 



JUDICIARY TO THE CONSTITUTION 151 

the opinions of other men of great prominence, 50 — 
it is not possible to doubt that the "Judicial Method" 
was definitely adopted by the Framers for this purpose. 

But this was not all. What of laws of Congress 
unauthorized by the terms of the Constitution? Can 
it be supposed for a moment that those very careful 
men forgot this point, or actually meant to leave each 
Congress f rfee in its uncontrolled discretion to interpret 
the instrument to mean what that body might at the 
moment think expedient? If any one believes this 
possible, he can have little knowledge of the jealousy 
of power which was then almost universally prevalent. 
Had the Constitution been supposed to carry this 
meaning, there can be no shadow of doubt but that 
the smaller States would all have instantly rejected 
the instrument, rather than submit themselves to the 
absolute power of the larger States. The possibility 
of this interpretation was seen to some extent, and the 
fear of it was one cause of alarm, but the many an- 
swers made in the Federalist and other publications, 
as well as in the Ratifying Conventions, were in gen- 
eral apparently found satisfactory. 

The subject might almost be left here, as it seems 
to me, and the intent that the judicial power should 
extend also to laws of Congress unauthorized by the 
Constitution, be rested on general inference from the 
surrounding circumstances, — the wide recognition of 
the like power throughout the States, the long and 
painful labor devoted to defining the powers, the fre- 

60 See, for example, Randolph's and Hamilton's proposals, 
ante, pp. 130, 142-144. 



152 THE RELATION OF THE 

quent insertion of clauses that specific things should 
not be done by the proposed Government, the putting 
of all these provisions in the intended treble strong 
brass of a permanent writing, the creation of great 
and independent Departments of Government bound 
by solemn oath to obey the Constitution, and the 
palpable fact that without some means of curbing 
Congress, sure to be often swept from its anchorage 
by wild gusts of popular passion, the deepest discon- 
tents would soon prevail in many parts of the country, 
and the new experiment end ere long in blood, failure, 
and revolution. 

But some writers of modern days by no means ad- 
mit this general view; and it is hence necessary to 
follow the subject further and see what other evidence 
of the intent can be found. 

The Constitution was to be the supreme law of the 
land, but this supremacy was only extended to such 
of the laws of Congress as should be made in pursu- 
ance thereof. As Hamilton had put it in No. 33 (31) 
of the Federalist: 

It will not follow from this doctrine that acts of the 
larger society which are not pursuant to its constitutional 
powers, . . . will become the supreme law of the land. 
... It [the constitution] expressly confines this suprem- 
acy to laws made pursuant to the constitution. 

And Madison wrote in No. 44 (43) of the same 
great commentary that, if Congress should misconstrue 
their authority to pass laws necessary and proper, the 
result would be 



JUDICIARY TO THE CONSTITUTION 153 

the same as if they should misconstrue or enlarge any 
other power vested in them . . . the same in short as if 
the State Legislatures should violate their respective con- 
stitutional authorities? 1 In the first instance, the success 
of the usurpation will depend on the executive and judi- 
ciary departments which are to expound and give effect 
to the legislative acts. 

To the same effect, the future great Chief Justice 
said in the Virginia Ratifying Convention, 52 

Can they go beyond the delegated powers? If they 
were to make a law not warranted by any of the powers 
enumerated, it would be considered by the judges as an 
infringement of the Constitution which they are to guard. 
They would not consider such a law as coming under 
their jurisdiction. They would declare it void. . . . To 
what quarter will you look for protection from an in- 
fringement of the Constitution, if you will not give the 
power to the judiciary. There is no other power that 
can afford such a protection. 

Iredell, too, wrote to precisely the same effect in 
1787, "It really appears to me, the exercise of the 
power [by the Judiciary] is unavoidable, the Consti- 
tution not being a mere imaginary thing." 53 

61 Italics mine. 

"Elliot, Vol. Ill, p. 553. It is interesting to remember that 
Marshall had studied law with Wythe, who took part in Comm. 
v. Caton in 1782, and wrote in his opinion : "Nay, more, if the 
whole Legislature" should attempt to overleap the bounds pre- 
scribed by the Constitution, he would meet them from his seat 
and say "hither shall you go, but no further." See ante, p. 64. 

63 Reply to letter of Spaight strongly criticising the decision 
in Bayard v. Singleton, quoted more at length, ante, p. 121. 



154 THE RELATION OF THE 

It has been said that it was fairly well established 
by this time in the States, that a law violating the 
State Constitution was void, and would be so held by 
their Courts. And not only was the analogy of like 
laws of Congress violating the United States Consti- 
tution perfect, but the need for a cure was perhaps 
even stronger in the latter case, for such an unauthor- 
ized law would otherwise violate the rights of thirteen 
States. If a written Constitution, with all its so 
laboriously drawn authorities and limitations, was not 
to be from the start a vain thing, with no defense 
against the encroachments of Power, which the men 
of that day so much feared, some method must be 
found in the system to protect the instrument from 
such violations; and Marshall, Madison, Hamilton, 
and Iredell have all been shown to have pointed out,— 
before the Constitution went into effect, — the Judicial 
Department as the one to exercise this function. 

In addition to all this contemporaneous evidence, it 
is curious to find that in a very few years, when the 
general subject was discussed at the time of the Pen- 
sion Cases, it was pointed out 54 that, unless our 
Courts were to exercise the power in question, there 
was no agency in our system, short of a Constitutional 
Convention, that could prevent the carrying out of 
unconstitutional laws. 

Calhoun, too, who fully believed in the general 
power of the courts as to unconstitutional laws, while 
rejecting some of its apparent results or derivatives, 
said much the same thing in other words many years 

54 The Philadelphia Aurora, of April 20, 1792, quoted post, 
p. 182. 



JUDICIARY TO THE CONSTITUTION 155 

later. In his speech of February 15 and 16, 1833, on 
the Force Bill, made in the Senate when the contest 
over Nullification was still most acute, after first de- 
nying that the power was conferred upon the Supreme 
Court by the Constitution, he said: 

I do not deny that it possesses the right ; but I can by 
no means concede that it was derived from the Constitu- 
tion. It had its origin in the necessity of the case. 
Where there are two or more rules established, one from 
a higher, the other from a lower authority, which may 
come into conflict in applying them to a particular case, 
the judge cannot avoid pronouncing in favor of the su- 
perior against the inferior. 55 

Again, in the treatment of the general subject by the 

Convention, the laws of Congress were coupled in the 

same clause with the laws of the States, and the same 

result would hence naturally follow as to both. In- 

56 "Works," Vol. II, pp. 201-203. Some writers have thought 
very differently of Calhoun's opinions on this subject, but they 
have probably been misled by his refusal to admit that a State 
could be concluded, as to the meaning of the constitution, by a 
decision of the Supreme Court in an ordinary case between 
parties. He would doubtless also have denied, with the State 
Rights School in general, the right to an appeal to the Supreme 
Court in any case in which a State was a party. The decision 
of the federal courts in some question arising under Nullifica- 
tion, might have been very inconvenient to the South Carolina 
leaders, and at the session of 1830-31 Warren R. Davis (a close 
political friend of Calhoun) moved to repeal that portion of 
the Judiciary Act of 1789, which gives a right of appeal to the 
Supreme Court of the United States from the decree of a 
State Supreme Court, — but which had always been opposed by 
the ultra State Rights School. The motion was lost, but was 
hardly made without Calhoun's consent, despite the fact that he 
thought it went very much beyond Nullification, "Life of Cal- 
houn/' by William M. Meigs, Vol. I, pp. 420, 421. 



156 THE RELATION OF THE 

deed, Madison has been just shown to have said (abso- 
lutely assuming the voidness of State laws in viola- 
tion of the State Constitution) that, if Congress should 
exceed its authority and pass unauthorized laws, the 
same result would follow as did when the State Legis- 
latures violated their constitution. That the invalidity 
of unauthorized laws was made plainer in the new 
instrument, — and indeed absolutely plain as to State 
laws which should violate the United States Constitu- 
tion, — was owing to the fact that such unauthorized 
State laws and their avoidance constituted one of the 
chief points of importance in the minds of the 
Framers, and had been a large factor in leading to the 
Convention. 

But the adoption of the Judicial Method even as 
to these State laws could hardly possibly have been 
thought of had not the judges in a number of States 
already laid down the general principle that a law in 
violation of a written constitution w r as void, and would 
be so held by the Courts of the particular jurisdiction 
in a judicial case brought before them. This great 
principle was used by the Convention to attain their 
end as to State laws unauthorized under the Federal 
Constitution ; but it had precisely the same application 
to laws of Congress unauthorized under the new Con- 
stitution as it had to the laws of one of our States 
unauthorized under its Constitution. 

The Convention then enacted, in the plainest words, 
the specific point that State laws in violation of the 
Federal functions were to be held void by the Courts, 
thus using the new principle to get rid of offending 



JUDICIARY TO THE CONSTITUTION 157 

State laws, but it left a little to inference from the 
well-known growth of Judicial Power in our country 
as to Unconstitutional Legislation, the other point that 
unauthorized laws of Congress should (to paraphrase 
Madison's language quoted above) meet with the same 
treatment as did those of the State Legislatures when 
they violated their respective constitutional authorities. 



CHAPTER VIII 



THE CONSTITUTION BEFORE THE PEOPLE, AND IN THE 
RATIFYING CONVENTIONS 



The term "Judicial Power" has been used by the 
writer in the preceding chapter with reference to its 
adoption by the Convention as the means of stopping 
unconstitutional laws. It is a term that was not used 
in that sense at the time, so far as I know; but the 
idea is plainly to be found in speeches in the Conven- 
tion, and in the Federalist and other writings of lead- 
ing men at abotft that date. The idea was already 
becoming formulated, or integrated, and was in time 
crystallized in that expression. Madison has been 
shown to have used in several instances language that 
plainly imported this power, and Hamilton did the 
same thing in No. 78 and other numbers of the Fed- 
eralist. 

Many writers have said with truth that a point of 
first importance in interpreting the Constitution is to 
find out what the Ratifying Conventions understood 
any disputed clause to mean; for it was their action 
that breathed life into the instrument. As to many 
such clauses, there is, of course, great doubt; portions 
of the instrument have ever been differently under- 
stood by different writers; but in relation to the in- 

158 



JUDICIARY AND CONSTITUTION 159 

tended power of the Judiciary under the new system 
to hold unconstitutional State laws violating the 
Federal authorities, it is difficult to see how there can 
be any question. 

And the same right applies to laws of Congress 
unauthorized by the new Constitution, only less clearly. 
The laws of Congress and those of the States were 
always treated together by the Convention, without 
any difference being drawn between them in this re- 
spect; and before the people the burden of the discus- 
sions related to unauthorized laws of Congress, for 
one of the dreads of opponents was that the powers of 
Congress would be indefinitely extended, both by the 
legislative authority under the new system, and by the 
favoring interpretation of such extensions by the 
Federal Courts, while the advocates of the new system 
put their reliance on an honest Federal Judiciary, 
which would interpret the new system with fairness. 

Little, if anything, new can be written to-day about 
the discussion of the Constitution in 1787 and 1788, 
and the intention of the writer in the present chapter 
is to present shortly some of the public utterances 
upon this subject by the essayists of the day and in 
the Ratifying Conventions, leaving to already existing 
writings the full details of this branch of the subject. 
Enough will, I think, be produced to show conclusively 
that the Judicial Power was most widely recognized, 
and its great influence understood, both by friend and 
foe of the new system. Friends lauded it, as sure to 
result in holding the new system within bounds, while 
foes denounced it, as destined to render the Central 



160 THE RELATION OF THE 

System absolute, and utterly to abrogate the powers 
and rights of the States. Both classes of commen- 
tators will, of course, be cited here, for the evidence 
of the one is as strong as that of the other in regard 
to the belief in the existence in the Constitution of the 
Judicial Power. 

It should be added that, SO' far as I know,, the ex- 
istence of the power was nowhere denied by any 
writer of repute. Some, doubtless, still thought it an 
unwise power to have conferred, but not one seems to 
have expressed doubt as to the intention of the Con- 
vention to incorporate it in the new Constitution. 

Hardly had the Constitutional Convention ad- 
journed, when Pierce Butler, a member from South 
Carolina, wrote (October 8) a letter detailing some 
items of the plan, and specifying that they had agreed 
upon "a Judiciary to be Supreme in all matters relating 
to the General Government, and Appellate in State 
Controversies," x 

And the "Remarks to the People of Maryland" by 
Aristides, 2 — who was Alexander Contee Hanson, a 
member of the Maryland State Convention, and Chan- 
cellor of the State from 1789 until his death, — are 
very plain on this point, touching, however, on other 
matters as well. He writes of the clause as to making 
any laws which shall be necessary and proper, and then 
refers to the apprehension that this "sweeping clause" 

1 Farrand's "Records," Vol. Ill, pp. 102, 103. 

2 Paul Leicester Ford's " Pamphlets on the Constitution of the 
United States published during its discussion by the People, 
1787-1788," pp. 217-257. 



JUDICIARY TO THE CONSTITUTION 161 

will afford a pretext for freeing Congress from all 
constitutional restraints, going on to say : 

I take the construction of these words to be precisely 
the same as if the clause had preceded [sic] further and 
said, "No Act of Congress shall be valid, unless it have 
relation to the foregoing powers, and be necessary and 
proper for carrying them into execution. " But say the 
objectors, "The Congress, being of itself to judge of the 
necessity and propriety, may pass any act, which it may 
deem expedient, for any other purpose. " This objection 
applies with equal force to each particular power de- 
fined by the Constitution. . . . They may reflect, how- 
ever, that every judge in the Union, whether of State or 
federal appointment (and some persons would say every 
jury 3 ) will have a right to reject any act handed to 
him as a law, which he may conceive repugnant to the 
Constitution. 

Elbridge Gerry, in his "Observations," 4 was far less 
favorable, and went into many objections, the follow- 
ing among others: 

There are no well defined limits of the Judiciary Powers, 
they seem to be left as a boundless ocean, that has broken 
over the chart of the Supreme Lawgiver, "thus far shalt 
thou go and no further," and as they cannot be compre- 
hended by the clearest capacity or the most sagacious 
mind, it would be a Herculean labor to attempt to de- 
scribe the dangers with which they are replete. 

8 This seems to us to-day a curious idea ; but it was evidently 
not confined to^ Hanson's mind, for Luther Martin argued against 
it upon the trial of the impeachment of Judge Chase in 1804, 
Farrand's "Records," Vol. Ill, pp. 407, 408. 

* Ford's "Pamphlets," etc., p. 9. 



i62 THE RELATION OF THE 

Robert Yates of New York, as "Brutus," was very 
clear as to the broad powers conferred on the Judiciary 
and very decidedly against this part of the Constitu- 
tion. As he wrote in one of his papers: 

This Government is a complete system, not only for 
making, but for executing laws. And the courts of law, 
which will be constituted by it, are not only to decide 
on the Constitution and laws made in pursuance of it, 
but by officers subordinate to them, to execute all their 
decisions. . . . No errors they may commit can be cor- 
rected by any power above them, if any such power 
there be, nor can they be removed from office for making 
ever so many erroneous decisions. . . . The opinions of 
the Supreme Court, whatever they may be, will have the 
force of law; because there is no power provided in the 
Constitution, that can correct their errors or control their 
jurisdiction. Frorri this court there is no appeal. And 
I conceive the legislature themselves cannot set aside a 
decree of this court, because they are authorized by the 
Constitution to decide in the last resort. [And in a later 
number he added] The supreme court then have a right, 
independent of the legislature, to give a construction to 
the Constitution and every part of it, and there is no 
power provided in this system to correct their construc- 
tion or do away with it. If therefore the legislature pass 
any laws inconsistent with the sense the judges put upon 
the Constitution, they will declare it void. 5 

In the Federalist, the treatise which may almost be 

said to have been published by authority, the right and 

5 Quoted in Davis's "Annulment of Legislation by the Supreme 
Court" in Amer. Polit. Sci. Rev., Vol. VII, p. 577, from Paul 
Leicester Ford's "Essays on the Constitution of the United 
States," etc., p. 295. 



JUDICIARY TO THE CONSTITUTION 163 

duty of the Judiciary in regard to unconstitutional 
laws were recognized and asserted in numbers of the 
papers, some of which have already been quoted in 
these pages, but the following may be added. In 
Number XVI, referring to an invasion of National 
rights by the State Legislature, Hamilton writes : 

If the judges were not embarked in a conspiracy with 
the legislature, they would pronounce the resolutions of 
such a majority to be contrary to the supreme law of the 
land, unconstitutional and void. 

And his exclusion from the supremacy, provided 
by the Constitution, of laws of Congress not passed in 
pursuance of the instrument 6 is equally clear. In a 
late number (LXXX) he examined the question 
whether the limitations were merely binding on the 
consciences of members of Congress, and hence what 
lawyers call "directory" ; but his conclusion was that 
they are far more than this, and are mandatory. 7 

The acrid Luther Martin, who had been so closely 
concerned with the early beginnings of the provisions 
as to Judicial Power, but whose limited ideas upon 
the subject had been entirely overruled, in his lengthy 
"Genuine Information," told the Maryland Legislature 
on November 29, 1787, that 

whether, therefore, any laws or regulations of the Con- 
gress, or any acts of its President or other officers, are 

8 Ante, p. 152. 

7 Those who desire to follow further the opinions expressed 
by the Federalist should consult Nos. XVI, XXXIII, LXXVIII, 
LXXIX, and LXXX. 



1 64 THE RELATION OF THE 

contrary to, or warranted by the constitution, rests only 
with the judges, who are appointed by Congress to de- 
termine; by whose determination every State must be 
bound. 8 

In Pennsylvania, the unknown author of "Centinel" 
argued as follows against the Constitution in his Num- 
ber V, and after quoting Article VI in regard to the 
Constitution and laws, etc., being supreme, wrote: 

The words "pursuant to the constitution" will be no re- 
striction to the authority of Congress ; for the foregoing 
sections give them unlimited jurisdiction ; their unbound- 
ed power of taxation alone includes all others, as who- 
ever has the purse-strings will have full dominion. a . . 
[But the Convention has added also the power to make 
all laws necessary and proper.] Whatever law Congress 
may deem necessary and proper for carrying into execu- 
tion any of the powers vested in them may be enacted; 
and by virtue of this clause, they may control and abro- 
gate any and every law of the State governments, on the 
allegation that they interfere with the execution of any of 
their powers. . . . [And in a later Number (XVI) he 
argues to much the same effect, and adds that the laws 
would be subject to the scrutiny of the judges] whose 
province it would be to determine the constitutionality 
of any law that may be controverted. 9 

In the debates in the Pennsylvania Ratifying Con- 
vention, the general subject was most clearly stated 

8 Farrand's "Records," Vol. Ill, pp. 172-230: see especially 
p. 220. 

9 "Centinel" is reproduced in "Pennsylvania and the Federal 
Convention," edited by John Bach McMaster and Frederick D. 
Stone, pp. 611, 612, 659. 



JUDICIARY TO THE CONSTITUTION 165 

by at least two members. Wilson's views are so well 
known that it is almost surplusage to reproduce them, 
but the following is so plain as to be worth the space 
it will take : 

I say, under this constitution, the legislature may be 
restrained and kept within its prescribed bounds by the 
interposition of the judicial department. [Should the 
Legislature transgress the bounds assigned to it and pass 
an unauthorized law], when it comes to be discussed be- 
fore the judges, when they consider its principles and 
find it to be incompatible with the superior powers of the 
constitution, it is their duty to pronounce it void; and 
judges independent, and not obliged to look every session 
for a continuance of their salaries, will behave with in- 
trepidity and refuse to the act the sanction of judicial 
authority. 10 

And Wilson reports McKean as saying similarly 
of the Legislature that 

It may be restrained in several ways: 
1. By the judges deciding against the Legislature in 
Favor of the Constitution. 11 

Fears were expressed in the Ratifying Conventions 
of at least two States that the restrictions contained 

10 Ibid., pp. 304-305, and see the same thing expressed again 
later at p. 340 and p. 354. Immediately after the matter quoted 
in the text, Wilson goes on : "In the same manner, the President 
of the United States could shield himself and refuse to carry 
into effect an act that violates the Constitution" ; see also pp. 
305 and 398. I shall return to this again in the last chapter 
of this book. 

"Ibid., p. 766- 



166 THE RELATION OF THE 

in the Constitution would be overridden by Congress, 
and the powers be enormously extended. In Massa- 
chusetts these objections were met by the recommenda- 
tion in the resolution of ratification of amendments, 
one of which contained the clause that "all powers not 
expressly delegated . . . were reserved," etc. This 
brought from Sam Adams the following statement : 

It removes a doubt which many have entertained re- 
specting the matter and gives assurance that, if any law 
made by the federal government shall be extended beyond 
the powers granted by the proposed Constitution, and 
inconsistent with the constitution of this state, it will be 
an error, and adjudged by the courts of law to be void. 12 

In the New York Convention, Williams and Me- 
lancthon Smith .thought the powers conferred gave 
Congress express authority to pass any law they might 
please and might judge necessary; Smith even speci- 
fying that 

they would have power to abrogate the laws of the 
States, and to prevent the operation of their taxes ; and 
all courts, before whom any dispute on these points 
should come, whether federal or not, would be bound by 
oath to give judgment according to the laws of the Union. 

Similarly, Williams referred to the language as to 
providing for the common defense and general wel- 
fare, and that in regard to passing necessary and 
proper laws, continuing thus: 
12 Elliot's "Debates/' Vol. II, pp. 122, 123, 131, 177, 178. 



JUDICIARY TO THE CONSTITUTION 167 

It is, therefore, evident that the legislature, under this 
constitution, may pass any law which they may think 
proper. [And added later] If the Congress should 
judge it a proper provision for the common defense and 
general welfare that the state governments should be 
essentially destroyed, what, in the name of common 
sense, will prevent them? Are they not constitutionally 
authorized to pass such laws ? 13 

Nothing could be plainer than Ellsworth's expres- 
sions in the Connecticut Ratifying Convention, when 
he said: 

This Constitution defines the extent of the powers of 
the general government. If the general legislature should 
at any time overleap their limits, the judicial department 
is a constitutional check. If the United States go beyond 
their powers, if they make a law which the Constitution 
does not authorize, it is void; and the judicial powers, 
the national judges, who, to secure their impartiality, are 
to be made independent, will declare it to be void. On 
the other hand, if the States go beyond their limits, if 
they make a law which is a usurpation upon the general 
government, the law is void; and upright, independent 
judges will declare it so. 14 

From the debates of the Virginia Convention Mar- 
shall has already been quoted 15 as most distinctly as- 
serting the power of the Judiciary, while Patrick 
Henry said : 16 

"Ibid., pp. 330, 334, 338, 37& 

14 Farrand's "Records," Vol. Ill, pp. 240, 241. 

15 Ante, p. 153. 

"Elliot's "Debates," Vol. Ill, pp. 324, 325. 



1 68 THE RELATION OF THE 

Yes, sir, our judges opposed the acts of the legislature. 
We have this landmark to guide us. They had fortitude 
to declare that they were the judiciary, and would oppose 
unconstitutional acts. Are you sure that your federal 
judiciary will act thus? 

To the opinions already quoted might be added like 
ones from numbers of others, too,— Grayson, Pendle- 
ton, and Randolph in Virginia; in Delaware, Dickin- 
son; in New York, Hamilton and others; in South 
Carolina, Rutledge, and C. C. Pinckney, and in North 
Carolina, Steele, Davie, and Iredell 17 whose opinions 
have already been shown in these pages. Baldwin, of 
far-off Georgia, was also a believer in the general 
doctrine. 18 But more than enough recognition of the 
existence of the Judicial Power in the new system has 
been cited, until some denials that it had any place in 
it are shown us from somewhere. 

During the time while the Constitution was under 
consideration in the States, or a little later, and at 
least before it was put into operation, the question 
came up twice judicially in separate States, — in Vir- 
ginia in the case of the Judges, and in South Carolina 
in Ham v. McClaws. In the first-named case, 19 in 
1788, the Court of Appeals and other courts of Vir- 
ginia sent a remonstrance to the Legislature against 
a recent statute requiring them, in addition to their 

17 Melvin's "Judicial Bulwark," Amer. Polit. Sci. Rev., Vol. 
VIII, p. 198. For Steele, Horace A. Davis's "Annulment of 
Legislation by the Supreme Court," ibid., Vol. VII, p. 579, 
citing Elliot's "Debates," Vol. IV, p. 71. 

18 Davis's "Annulment," etc., ibid., p. 555. 

19 4 Call's Reports, 135. 



JUDICIARY TO THE CONSTITUTION 169 

existing duties, to act as judges of a newly estab- 
lished District Court, without increase of salary. 
They declined to do as required, saying that the act 
was contrary to the Constitution, and therefore must 
be controlled by the Constitution. The subject re- 
mained a matter of controversy, and was again under 
judicial consideration in Kamper v. Hawkins in 1793, 
when the judges were unanimous that the law was 
unconstitutional. In the end the act was amended, 
and the judges all resigned, but requalified under the 
new statute. 20 

In Ham v. McClaws 21 in 1789, the Superior Court 
of South Carolina not only wrote that "it is clear, 
that statutes passed against the plain and obvious prin- 
ciples of common right, and common reason, are abso- 
lutely null and void, as far as they are calculated to 
operate against those principles," but held that an act 
of 1788, which positively and without exception pro- 
hibited the importation of negroes, did not apply to an 
actual settler, who had made such importation under a 
prior act of 1787 and could not possibly have known, 
at the time of his importation, of the act of 1788. 
The case was, it is true, put upon the basis of inter- 
pretation, and that they would not do the Legislature 
the injustice to suppose that such a result was in- 
tended; but it went a long way in interpretation, and 
the tendency was plainly in the direction of holding 
laws void in some cases. 

20 Kamper v. Hawkins, 2 Va. Cases (Brockenbrough ami 
Holmes), 20. 
21 1 Bay, 93. 



CHAPTER IX 

RAPID SPREAD OF THE DOCTRINE AFTER 1 789 

When once the Constitution went into effect, in 
1789, it was to be expected, after all that had been 
said in public by that date of its meaning in regard 
to the Judiciary, that that department's powers under 
the new instrument would be widely asserted and 
recognized throughout the country. And such was 
the case. From many sources, some of such a char- 
acter as to be utterly unanswerable, came up rapidly 
year by year a mass of proof. 

In the very first Congress, where as many of the 
Framers as eighteen, — that is, fully one-third, — sate 
as members, 1 and had that leading hand in legislation 
which belonged of right to them, one really conclusive 
evidence of the meaning of the instrument in regard 
to the Judiciary was quickly furnished. Numbers of 
Acts of Congress were required to put the new Govern- 
ment into operation and to bring into play the various 
provisions of the Constitution. One of these new laws 
was the Judiciary Act of September 24, 1789, which 
has stood the test of years so well that many of its 
provisions are still to-day in effect. It is well known 
to have been drawn by Ellsworth of Connecticut, 
1 Melvin's "Judicial Bulwark," ut ante, p. 200. 

170 



JUDICIARY AND CONSTITUTION 171 

whose course in the Federal Convention, — and still 
more in the Connecticut Ratifying Convention, — can 
leave no shadow of doubt as to his belief in the power 
of the Judiciary to hold laws (either of the United 
States or of the States) unconstitutional in a proper 
case. With him on the committee were Paterson, 
Few, Strong, and Bassett, — all likewise Framers. 2 

By one clause of the Act of 1789, 3 appellate juris- 
diction was conferred upon the United States Supreme 
Court from any decree in a case in the proper State 
or Federal Court in which a statute or treaty of the 
United States had been called in question, and the 
decision had been against its validity. That is to say, 
not only was it recognized that the State Courts and 
the lower Courts of the United States might perhaps 
hold statutes of a State to be in violation of the United 
States Constitution, and hence void, but that they 
would probably at times hold a State statute valid and 
a Federal statute conflicting with it void, because of 
the latter's not being authorized under the Constitu- 
tion; or in other words, as the Federalist had put it, 
because the Federal statute was not passed in pursu- 
ance of the Constitution. 

Nor is this all: full power was conferred in these 
cases on the United States Supreme Court in error. 

5 On the origin of the Judiciary Act, see Madison, May 30, 
1832, to Edward Everett, in "Works," by Congress, 1865, Vol. 
IV, pp. 220, 221 : "Life of Ellsworth," by Henry Flanders, in 
"Lives and Times of the Chief Justices," Vol. II, p. 159: Davis's 
"Annulment," etc., ut ante., p. 546: Melvin's "Judicial Bulwark," 
ut ante., p. 200. 

'Story's "Statutes of the United States" (2d edition, by Geo. 
Sharswood), p. 53. Sec. 25 is the section in question. 



172 THE RELATION OF THE 

It could either affirm or reverse, and must do the one 
or the other. If it affirms a ruling of the lower court 
against the power claimed under the United States 
Constitution or law, it must first inquire and must de- 
cide for itself that the Federal law is unconstitutional 
and void, — or, if it thinks the Federal law to be in 
pursuance of the Constitution and the conflicting State 
law void, it must so find, and therefore reverse. The 
final decision is ever a decision of the Supreme Court. 
The only limitation is that, if the lower court has de- 
creed in favor of the power claimed for the United 
States, there is no right at all of error or appeal, for 
the evident reason that the power has then been already 
recognized. However, where an appeal, or error, 
does lie, the United States Supreme Court must dis- 
tinctly rule (if it affirms) that a Federal statute is un- 
authorized and void. This seems to have been ques- 
tioned, 4 but surely nothing could be plainer on exam- 
ination; nor does it seem possible to doubt that such 
was the intention of Ellsworth and of whoever aided 
him in drafting the Act, and of the Members of Con- 
gress who passed it. They evidently designed to give 
the Supreme Court the right to interpret the Federal 
Constitution, and the power to reverse (and equally 
to affirm) any decree of a lower court against a Fed- 
eral power fully secured this end. 

It is worthy of mention, too, that, in a course of 
lectures delivered at the College of Philadelphia in 

4 Horace A. Davis's "Annulment of Legislation," ut ante., pp. 
583 et seq. See Mr. Melvin's answer in his "Judicial Bulwark," 
ut ante. 



JUDICIARY TO THE CONSTITUTION 173 

1 790-9 1, 5 James Wilson reasserted his already ex- 
pressed views on the subject, and that in 1802 Judge 
Tucker maintained similar views in his edition of 
Blackstone ; 6 so that the doctrine was soon being 
taught and spread far and wide among students and 
the oncoming generation. When, too, Elias Boudinot 
was warned in the House of Representatives, in 1791, 
that the Courts would decide the proposed Bank of 
the United States to be unconstitutional, he not only- 
referred to the right of the Judiciary, but openly ex- 
pressed his boast and confidence therein. 7 

Soon, too, more judicial decisions recognizing and 
exercising the power began to appear. In 1791, New 
Hampshire, — which had already heard the doctrine 
asserted in her Legislature and probably in her lower 
Courts, 8 — definitely joined the column of States in 
which the power of the courts was enforced by the 
Judiciary. 

One Elizabeth McClary had lost a suit in Rocking- 
ham County, and, in accordance with what has been 
shown 9 to have been a practice, — often roundly 
stopped by the King in Council in colonial days, — she 
then petitioned the Legislature in 1790 and secured 
the passage of "an act to restore [her] to her rights." 
In other words, the Legislature undertook to interfere 
with the Judiciary, and to grant a new trial in a case 

5 "Lectures on Law," by James Wilson, Vol. I, pp. 460, 461. 
"Tucker's "Blackstone," Vol. I, Appendix, pp. 354, 355. 

7 Benton's "Abridgment," Vol. I, p. 291. 

8 Ante, pp. 73, 74- 

9 Ante, pp. 74, 75- 



174 THE RELATION OF THE 

already determined. On the new trial, counsel for the 
original plaintiff objected 

that the act could not entitle the original defendant to 
a trial by way of appeal, for if it reversed the judgment, 
it was repugnant to the constitution of the State : and if 
it did not reverse the judgment, the same might be 
pleaded in bar. 

After a full hearing, the Court entered the following 
decree : 

It appears to the court that if the act virtually or really 
reverses the judgment of this court, it is repugnant to 
the bill of rights and constitution of this State, and if the 
Act does not reverse the said judgment the court cannot 
render another judgment in the same case upon appeal, 
while the first judgment remains in full force. It is 
therefore considered by the Court that the said Act is 
ineffectual and inadmissible, and that the said action be 
dismissed. 

The case was in the Superior Court for the County 
of Rockingham. 10 

10 See article by Walter F. Dodd in Amer. Histor. Rev., Vol. 
XII, pp. 348-350. Mr. Dodd examined the MS. Records of the 
two houses of the Legislature of New Hampshire, and of the 
Superior Court for Rockingham County, for Sept., 1791, and the 
quotations in my text are from these original authorities cited 
by him. See also William Plumer's "Life of Wm. Plumer," 
pp. 170-172 and 59, and my article in Vol. XL VII of the Amer. 
Law Review, p. 683, etc. It will be observed how exactly what 
Plumer writes of his father's contentions in the case agrees with 
the original records found by Mr. Dodd. When I wrote my 
article, it is needless to say that I did not know the subject 
had been so much more thoroughly studied by Mr. Dodd several 
years before. 



JUDICIARY TO THE CONSTITUTION 175 

In 1792, in Bowman v. Middleton, 11 and again in 
1805 in White v. Kendrick, 12 South Carolina followed 
the indications of Ham v. McClaws, 13 and aligned 
herself far more fully with the growing doctrine in 
regard to Judicial Power. In the case of 1792, a 
law of 1 71 2 was held void, which aimed to vest the 
title to land in certain persons without a trial by jury 
or otherwise, the Court saying that the law was 
"against common right, as well as against magna 
charta" And the decision of 1805 held void a law 
of 1801, extending the jurisdiction of justices of the 
peace to cases involving as much as $30, for the reason 
that it violated a provision of the Constitution that 
trial by jury should remain as theretofore, and justices 
had never had jurisdiction to so large an amount. 

In 1792 and 1793 Virginia again rendered decisions 
of importance in the matter. Turner v. Turner 14 was 
perhaps in the main a question of the proper interpre- 
tation of an Act of Assembly; but Page v. Pendleton 15 
very distinctly ruled that a debt due to a British cred- 
itor was not discharged by payment in paper money 
into the loan office, under the Act of 1788, despite the 
fact that this statute expressly enacted that it should 
be ; and in Kamper v. Hawkins 16 the General Court 
held unanimously that the Judges were not bound by a 

"I Bay, 252. 

12 1 Brevard, 469. 

13 Ante, p. 169. 

14 4 Call, 234. 

15 4 Wythe, 211. 

16 2 Va. Cases (Brockenbrough and Holmes), 20. This case 
has been already mentioned, ante, p. 169. 



176 THE RELATION OF THE 

statute which required them to sit also as members 
of a newly-created court, without additional pay. 

New Jersey, too, was heard from again in 1796, 
when, in Taylor v. Reading, 17 her Supreme Court re- 
asserted the ruling of Holmes v. Walton 18 in 1780; 
and she ruled the same way once more in 1804, in 
State v. Parkhurst, 19 after a very determined contest. 
North Carolina adhered to Bayard v. Singleton in 
Ogden v. Witherspoon 20 in 1802, and in University 
v. Foy 21 in 1805. 

During about this same period two more States 
ranged themselves clearly enough, for the first time, 
on the side of the Judiciary's power : Pennsylvania in 
Austin v. Trustees 22 in 1793, and in Respublica v. 
Duquet 23 in 1799, and Maryland in 1802 in Whitting- 
ton v. Polk. 24 In Austin v. Trustee?, there was an- 
other ground for the decision ; but the Supreme Court 
of Pennsylvania expressed itself as having "no diffi- 
culty in declaring . . . that the former act was 
unconstitutional" : while in the Duquet case, so far 
had the doctrine in general come to be accepted, that 
Jared Ingersoll, a leader of the bar and member of the 
Federal Convention, divided his argument into two 
heads, the first of which was: "Is the law of . . . 
unconstitutional ?" ; and the Court wrote in its opinion 



17 4 Halstead, Appendix, 444. 

18 See ante, pp. 61-63. 

19 4 Halstead, Appendix, 444. 

20 2 Haywood, 227 or 404. 
21 1 Murphy, 58. 

22 1 Yeates, 260. 
23 2 Yeates, 493. 
24 1 Harris & Johnson, 236. 



JUDICIARY TO THE CONSTITUTION 177 

that, though there was no breach of the Constitution 
shown in the case, and though the breach must be 
very plain before they would hold a law void, 

Yet if a violation of the constitution should in any case 
be made by an act of the legislature, and that violation 
should unequivocally appear to us, we shall think it our 
duty not to shrink from the task of saying such law is 
void. 

In Whittington v. Polk, though the act in question 
was held not to be unconstitutional, both sides ad- 
mitted that an act of assembly repugnant to the Con- 
stitution was void, and that the Court had the right so 
to determine. The opinion added that these points 
"have not been controverted in any of the cases which 
have been brought before this court." 

Before the end of the eighteenth century, therefore, 
there were no less than eight cases in as many States, — 
New Jersey, Connecticut, Rhode Island, North Caro- 
lina, South Carolina, New Hampshire, Virginia, and 
Pennsylvania, i.e., nearly two-thirds of all, — enforc- 
ing the right of the Judiciary to refuse to carry out a 
statute on the ground of its unconstitutionality; and 
with these New York may almost be joined, while 
Maryland has just been shown to have tended most 
strongly in the same direction in 1802. 25 In 1801, the 
new State of Kentucky ruled to precisely the same 
effect in Stidger v. Rogers. 26 

Nor is even this by any means all the evidence fur- 

25 Cf. with pp. 121-123. 
28 See ante, p. 76. 



1 78 THE RELATION OF THE 

nished by these first few years of the new Govern- 
ment's existence, when the Framers were still easily 
in control of affairs. A potent voice had come up 
from the Federal Courts as well. The question first 
arose in them in cases relating to Pensions. Congress 
had passed on March 23, 1792, 27 a statute directing 
the circuit court judges to hear petitions of applicants 
to be placed on the pension-lists, and the decrees in 
such cases were to be subject to suspension by the 
Secretary of War and to revision by Congress. At 
least four of the Circuit Courts demurred, and one of 
these four refused to act in the matter, — plainly on 
the ground that the law was an unauthorized effort to 
require the judges to perform work w r hich was not 
judicial. In Connecticut, the judges sate as commis- 
sioners 28 and made findings, one of which was after- 
wards, as will appear, used as a test-case. 

In New York, the Circuit Court 29 took the matter 
into consideration on April 5, 1792, and referred to 
the Government's being divided into three branches, 
each distinct and independent ; adding : 

Neither the Legislative nor the Executive branches can 
constitutionally assign to the Judicial any duties but such 
as are properly judicial. . . . The duties assigned to the 
Circuit Courts, by this Act, are not of that description. 

27 Story's "Statutes of the United States" (2d edition by George 
Sharswood), Vol. I, p. 224. 

28 "Note to Hayburn case," 2 Dallas, pp. 410-14, or "American 
State Papers, Misc.," Vol. I, pp. 49-52. 

^Duane, of Rutgers v. Waddington memory, was one of the 
three judges sitting. 



JUDICIARY TO THE CONSTITUTION 179 

Nor (so they went on in effect) does the Act seem 
to contemplate them as such, inasmuch as it subjects 
the decisions of the courts in the matter to suspension 
by the Secretary of War and revision by the Legisla- 
ture. Hence, the Act can only be considered as ap- 
pointing commissioners for the purpose, by official 
instead of personal description, and we think ourselves 
entitled to accept or decline. We will act, adjourning 
the court as usual from day to day, but proceeding 
regularly as commissioners between the adjournments 
to execute the business of the Act. A copy of their 
minutes, setting forth these views, was sent on April 
10th to the President, with a request that he would 
communicate them to Congress. 30 

In North Carolina, the same course was followed, 
to some extent; but the judges did not think they could 
act as commissioners. They also sent a letter, dated 
June 8, 1792, to the President, in which they wrote 
in part : 

We never can find ourselves in a more painful situa- 
tion than to be obliged to object to the execution of any 
[Act of the Legislature, but we cannot think the Courts 
authorized in exercising] power not in its nature judi- 
cial, or, if judicial, not provid-ed for upon the terms the 
Constitution requires. . . . These, Sir, are our reasons 
for being of opinion . . . that this Circuit Court cannot 
be justified in the execution of that part of the act, which 

30 "Note to Hayburn's case," 2 Dallas, pp. 410-414. Max Far- 
rand's "The First Hayburn Case," in Amer. Histor. Rev., Vol. 
XII, pp. 281-285. 



180 THE RELATION OF THE 

requires it to examine and report an opinion [on Pen- 
sion cases]. 31 

It was, however, in the Circuit Court for the District 
of Pennsylvania, where James Wilson presided and 
had beside him Blair, J. and Peters, District Judge, 
that the issue came most squarely to a head. It is 
hard to see how there can be a doubt that, even in the 
lawyers' sense, they held the Act unconstitutional. 
The record of their docket tells us baldly that the peti- 
tion of one Hayburn to be placed upon the list of 
Pensioners came up before them on April n, and that 
when the petition was read, they entered a decree that 
"after due deliberation thereupon had, it is considered 
by the Court that the same be not proceeded upon"; 
but it will shortly be shown that all the extant evi- 
dence indicates that the unconstitutionality of the law 
was their reason, and that it was so announced from 
the bench. Written statements of the Court itself 
seem to show the same thing. 32 

In this Circuit also, the Judges addressed a letter 
(April 18) to the President, in which they wrote that 
to him it belonged to see the laws faithfully executed, 
and that therefore they thought it their duty to lay 
before him 

the sentiments which, on a late painful occasion, gov- 
erned us, with regard to an act passed by the legislature 

31 Ibid. 

32 Prof. Farrand suggests to call this "The First Hayburn 
Case," in order to distinguish it from the case in 2 Dallas, p. 
409. To Prof. Farrand's article, already cited, are due- nearly 
all the statements in the text. 



JUDICIARY TO THE CONSTITUTION 181 

of the Union. . . . We have been unanimously of opin- 
ion, that, under this Act, the Circuit Court for the Dis- 
trict of Pennsylvania could not proceed [i. Because the 
business assigned to us is not judicial: 2. Because (if we 
had acted) our judgments might have been revised by 
the Legislative and Executive Departments]. Such re- 
vision and control, we deemed radically inconsistent with 
the independence of that judicial power which is vested 
in the courts. . . . These, Sir, are the reasons of our 
conduct. Be assured that, though it became necessary, 
it was far from being pleasant. To be obliged to act 
contrary, either to the obvious directions of Congress, or 
to a constitutional principle, in our judgment, equally 
obvious, excited feelings in us which v/e hope never to 
experience again. 33 

Almost immediately after the Court's refusal to go 
on with the case, Hay burn presented (April 13) a 
memorial to the House of Representatives, setting 
forth the action of the Court and asking for relief; 
and there was some consideration of the matter. 
Boudinot, a member of the House, made an explana- 
tory statement, saying : 

The Court thought the examination of invalids a very 
extraordinary duty to be imposed on the judges and 
looked upon the law which imposes that duty as an un- 
constitutional one, inasmuch as it directs the Secretary 
of War to state the mistakes of the judges to Congress 
for their revision; they could not, therefore, accede to a 
regulation tending to render the Judiciary subject to the 

83 "Note to Hayburn's Case" and Prof. Farrand's article, ut 
ante. 



1 82 THE RELATION OF THE 

Legislative and Executive powers. . . . This being the 
first instance in which a court of justice had declared a 
law of Congress to be unconstitutional, the novelty of the 
case produced a variety of opinions with respect to the 
measures to be taken on the occasion. 34 

One of the measures suggested, according to some 
newspapers, was impeachment, which would hardly 
have been proposed, unless for some such grievous of- 
fense as holding a law of Congress unconstitutional. 

The Aurora of April 20 wrote : 

Never was the word "impeachment" so hackneyed as it 
has been since the spirited sentence passed by our judges 
on an unconstitutional law. . . . But when these im- 
peachment mongers are asked how any law is to be de- 
clared unconstitutional, they tell us that nothing less than 
a general convention is adequate to pass sentence on 
it. . . . 

On the other hand, Camden, in the same paper of 
the 2 1st, disapproved of the article just quoted, as well 
as of the decision, and denied that any one in Con- 
gress had committed himself to impeachment. To 
this, Freneau's National Gazette of April 16 adds : 

A correspondent remarks that the late decision of the 
Judges of the U. S., declaring an act of the present ses- 
sion of Congress unconstitutional, must be matter of high 

34 "Annals of Congress, 2d Congress, 1st session," pp. 556, 557. 
The quotation in the text seems to be the reporter's summation 
of what Bondinot said, except the latter part as to the instance 
being the first in which a court had held a law unconstitutional, 
etc., which is probably entirely the reporter's own opinion. See 
also Edward S. Corwin's "Doctrine of Judicial Review," pp. 
50, 51. 



JUDICIARY TO THE CONSTITUTION 183 

gratification to every republican and friend of lib- 
erty. ... It affords a just hope that . . . any existing 
law of Congress, which may be supposed to trench upon 
the constitutional rights of individuals or of States, will, 
at convenient seasons, undergo a. revision; particularly 
that for establishing a National Bank. 

And the same paper of the 23rd contains an article 
noticing "Camden's" letter in the Aurora (quoted 
above), and saying: 

We deny "Camden's" assertion; and assert that the 
word "impeachment" was several times mentioned in the 
House of Representatives, although no motion was made 
on the subject. 

And again on May 10, the same Gazette spoke of "the 
decision of the judges against the constitutionality of 
an act in which the Executive had concurred with the 
legislative department." 

With all this evidence, it is a very moderate claim 35 
to make that "there would seem to be no reasonable 
doubt that on April 1 1 James Wilson, John Blair and 
Richard Peters declared the Invalid Pension Act of 
1792 unconstitutional." The docket does not, it is 
true, show this specifically, but on ultratechnical 
grounds it is hard to see what else can have been the 
ground for a refusal to proceed with the case. It 
was plainly no mere temporary postponement, and 
the evidence from all other sources, in the House of 

35 This is Prof. Farrand's claim in "The First Hayburn Case," 
Amer. Histor. Rev., Vol. XII, pp. 281-285. 



184 THE RELATION OF THE 

Representatives and out of it, shows conclusively that 
unconstitutionality was the ground of the decision. 
The First Hayburn Case was then the earliest instance 
in which a Federal Court held an act of Congress void. 

Attorney-General Randolph moved later in the Su- 
preme Court for a mandamus to the Circuit Court for 
the District of Pennsylvania to proceed with the peti- 
tion of Hayburn, but no decision was ever rendered, 
because Congress, in effect, gave up the question and 
passed a law for the relief of pensioners in another 
way. 36 

But this extensively considered question did not end 
even here. Doubts were entertained as to the validity 
of the findings of the members of the Circuit Courts, 
who had sate as commissioners, and section 3 of the 
Act of 1793 directed a test-case to be brought to raise 
this point. The Circuit Court in Connecticut had so act- 
ed and made a finding in favor of one Todd, and this 
had been paid. A suit was now brought to recover it, 
but it is not certain what was the basis of the decree 
to refund, which was entered against the defendant. 
Our knowledge of the case depends on a note made by 
Taney, filed in 185 1 by his orders; and he thought that 
the case ruled that the first pension act conferred 
power, which was not judicial, and was therefore un- 
constitutional ; but it seems that more modern students 
are probably right, and that the real reason for the 

36 Hayburn' s Case, 2 Dallas, 409. Act of 28 February, 1793, 
Story's ''Statutes of the U. S." (2d Edition, by Geo. Sharswood), 
Vol. I, p. 304. 



JUDICIARY TO THE CONSTITUTION 185 

decision was that the sitting of the judges as commis- 
sioners was held to be unauthorized under the act. 37 

It is not without interest to find that, in the growth 
and establishment of Judicial Power in America, 
some views were early held which seem to us to-day- 
very strange. Principles are rarely, or never, brought 
forth in full panoply of armor at their first appearance, 
but grow slowly by the retention of what is desirable 
and the elimination of matters perhaps earnestly con- 
tested for by some, but which the more sober judgment 
of others rules out as impossible, or undesirable. 

In 1793, at the time w r hen Genet was making us 
so much trouble, President Washington, by the advice 
of his Cabinet, asked the Justices of the Supreme 
Court a series of questions in relation to our differ- 
ences with France concerning the provisions of the 
treaties with her, but the Supreme Court ended for- 
ever this attempted perversion of Judicial Power, by 
replying that "they' deemed it improper to enter the 
field of politics by declaring their opinions on ques- 
tions not growing out of some case actually before 
them. 38 

In 1795, the general question arose again in the 
Circuit Court of Pennsylvania, in Van Home's Lessee 
v. Dorrance. 39 The case concerned the well-known 

87 U. S. v. Yale Todd in "Note" to U. S. v. Ferreira, 13 How- 
ard, 52. Farrand's "First Hayburn Case," Amer. Hist or. Rev., 
Vol. XII, pp. 281-285. Thayer's "Cases in Constitutional Law," 
Vol. I, p. 105 n. 

38 Marshall's "Washington," Vol. V, pp. 433, 441, cited in 
Simeon E. Baldwin's "The American Judiciary," pp. 33, 34, and 
in Corwin's "Doctrine of Judicial Review," pp. 50, 51. 

39 2 Dallas, 304. 



186 THE RELATION OF THE 

dispute between Pennsylvania and Connecticut in re- 
gard to certain lands, and the defendant relied on the 
Quieting and Confirming Act of the former State. 
Paterson, J., — whose probable knowledge of Holmes 
v. Walton and whose connection with the New Jersey- 
Plan in the Convention have been shown, 40 — -held the 
act in question to be in violation of the Federal Consti- 
tution, on the ground that it was ex post facto and 
impaired the obligation of a contract, and directed a 
verdict for the plaintiff. He said : 

I take it to be a clear position that if a legislative act 
oppugns a constitutional principle, the former must give 
way, and be rejected on the score of repugnance. I hold 
it to be a position equally clear and sound that, in such a 
case, it will be the duty of the Court to adhere to the 
Constitution, and to declare the act null and void. The 
Constitution is "... a rule and commission by which 
both Legislators and Judges are to proceed. ... It says 
to the legislators, thus far ye shall go and no further. 

A foot-note adds that a writ of error had been 
taken and was pending in the Supreme Court, but ap- 
parently it never came to argument. In U. S. v. 
Villato, 41 also, in 1797, a Pennsylvania statute con- 
cerning naturalization was held void by the Circuit 
Court, as being in violation of the existing State Con- 
stitution. 

During the next year after Van Home v. Dorrance, 
the question of the Judicial Power reached the Su- 

40 See ante, pp. 134, 135- 
41 2 Dallas, 370. 



JUDICIARY TO THE CONSTITUTION 187 

preme Court for the first time, and in the following 
four years there were two other such cases, — making 
four in all by 1800, if U. S. v. Yale Todd be included. 
In no one of these was there a decision of the point; 
but in all language was used which shows how the doc- 
trine was spreading and being accepted by the bench ; 
evidence will be found, too, that the bar as well was 
coming to be saturated with the same belief, and was 
beginning to use the new weapon in their pleadings, 
and in general, as a means of protecting their clients. 

The first case was Hylton v. The United States 42 
in the Circuit Court for Virginia, which was a suit 
against Hylton for his neglect to return one hundred 
and twenty-five carriages for taxation under the Act 
of Tune 5, 1794. A case stated was filed, in which 
it was agreed that Hylton had refused to return the 
carriages, "alledging that the said law was unconsti- 
tutional and void," and judgment had been entered 
against Hylton. He then took a writ of error to this 
judgment, and the case was argued by most eminent 
counsel : Lee, Attorney-General, and Alexander Ham- 
ilton, for the United States, and Campbell, of Virginia, 
and Jared Ingersoll, Attorney-General of Pennsyl- 
vania, for Hylton. The decision turned on the point 
whether or not the tax was a direct one under the 
Constitution, and therefore required to be laid accord- 
ing to the rule of apportionment. The Judges were 
all of opinion that it was not a direct tax, and was 
therefore constitutionally laid, but Paterson wrote : 
"If it be a direct tax, it is unconstitutional," while 

42 3 Dallas, 171. 



1 88 THE RELATION OF THE 

Chase did not think it a direct tax, and hence regarded 
it as 

unnecessary, at this time, for me to determine whether 
this court constitutionally possesses the power to declare 
an Act of Congress void, on the ground of its being made 
contrary to, and in violation of the Constitution, but if 
the Court have such power, I am free to declare, that I 
will never exercise it, but in a very clear case. 

Hamilton was paid a fee by spcial appropriation of 
Congress, "for arguing the cause before the Supreme 
Court in February term, 1796, respecting the consti- 
tutionality of the act imposing duties on carriages." 43 
Nor should it go unnoted that the point of constitu- 
tionality was here again evidently used by counsel : for 
it cannot be doubted that professional advice led to 
the recital in the case stated that Hylton had declined 
to return the carriages for taxation, on the ground 
that the tax violated the Constitution, and was void. 

In 1798 the question of the Court's powers came 
up once more in the Supreme Court, in Calder v. 
Bull. 44 The case depended on a statute of Connecti- 
cut, of 1795, which had set aside a decree of their 
Probate Court disapproving a certain will, and had 
granted a new hearing, under which the same will had 
been approved. Counsel for the plaintiff in error 

43 Speech of Dana on the repeal of the Judiciary Act in 1802, 
"Annals of Congress, 7th Congress, 1st session," 920-925. Dana 
was maintaining the power of the Courts and using this fact in 
the connection. He said, "the principle . . . has been settled 
for years." Edwin S. Corwin's "Doctrine of Judicial Review, ,, 
PP. 50, 51. 

"3 Dallas, 386. 



JUDICIARY TO THE CONSTITUTION 189 

(against the will admitted at the second hearing), con- 
tended "that any law of the Federal Government, or 
of any of the State Governments, contrary to the 
Constitution of the United States, is void; and that 
this court possess the power to declare such law void/' 
But Chase, J. wrote in evident reply to this : 

Without giving an opinion, at this time, whether this 
court has jurisdiction to decide that any law made by 
Congress, contrary to the Constitution of the United 
States, is void ; I am fully satisfied that this court has no 
jurisdiction to determine that any law of any State Leg- 
islature, contrary to the Constitution of such state, is 
void. 

This was in substance, it seems, the opinion of the 
Court in general; but Iredell was so clear on certain 
points that he must be quoted, and it is to be regretted 
that Judges have not generally remembered w T hat he 
said. Perhaps, had they done so, and thus confined 
themselves to reasonable and fixed grounds, there 
would not to-day be such a hue-and-cry against their 
real powers. He expressed himself as of opinion that, 
if a Government of the three Departments was estab- 
lished by a Constitution, which imposed no limits on 
the legislative power, whatever the Legislature might 
choose to enact would be lawfully enacted, and the 
Judiciary could never interpose to declare it void. 
And then he went on : 

It is true, that some speculative jurists have held, that 
a legislative act against natural justice must, in itself, be 
void; but I cannot think that, under such a government, 



190 THE RELATION OF THE 

any court of Justice would possess a power to declare it 
so. . . . In order, therefore, to guard against so great 
an evil, it has been the policy of all the American states, 
which have, individually, framed their state constitutions 
since the revolution, and of the people of the United 
States, when they framed the Federal Constitution, to 
define with precision the objects of the legislative" power, 
and to restrain its exercise within marked and settled 
boundaries. If any Act of Congress, or of the Legisla- 
ture of a state, violates those constitutional principles, it 
is unquestionably void; though I admit, that as the au- 
thority to declare it void is of a delicate and awful nature, 
the court will never resort to that authority, but in a 
clear and urgent case. If, on the other hand, the Legis- 
lature of the Union, or the Legislature of any member 
of the Union, shall pass a law, within the general scope 
of their constitutional power, the Court cannot pro- 
nounce it to be. void, merely because it is, in their judg- 
ment, contrary to the principles of natural justice. The 
ideas of natural justice are regulated by no fixed stand- 
ard. 

Once more, in the last year of the century, the 
question was under consideration in the Supreme 
Court, but again failed to call for an actual decision. 
Cooper v. Telfair 45 was a suit by Cooper of Jamaica 
against Telfair of Georgia, on a bond executed by the 
latter in 1774. Telfair pleaded the Act of Georgia of 
1782 for the confiscation of the property of those 
guilty of treason, — which expressly named Cooper, — 
and that by a later law of Georgia, of 1787, the amount 

45 4 Dallas, 14. 



JUDICIARY TO THE CONSTITUTION 191 

of the bond had been forfeited to the State. To this 
Cooper replied, — and again here we may safely as- 
sume that we have an instance of the astuteness of 
counsel, — that he had never been tried and convicted 
or attainted of treason, and that by the Georgia Con- 
stitution of 1777, the Legislative, Executive, and Judi- 
ciary were directed to be kept separate and distinct, so 
that neither should exercise the power belonging to 
the other. The Court below held this reply insuffi- 
cient, and that the plea, setting up the confiscation, 
was a full defense, and entered judgment for the de- 
fendant on the demurrer. The plaintiff then took a 
writ of error, and set up that the judgment held that 
the Legislature had cognizance of the alleged treason 
and could legally convict him. 

Upon the argument in the Supreme Court, E. 
Tilghman maintained : 

If the law is contrary to the Constitution, the law is 
void; and the judiciary authority, either of the state, or 
of the United States, may pronounce it to be so. 2 Dal- 
las, 308, 410. 3 Dallas, 383. 46 The law is contrary to 
the constitution, inasmuch as it is an exercise of the 
judicial power by the legislative authority, in opposition 
to an express prohibition of such a union of jurisdiction. 

Defendant's counsel, Ingersoll and Dallas, "con- 
ceded that, if the law plainly and obviously violates 
the Constitution of Georgia, it is void," but contended 
that it did not. 

The judgment below 7 was affirmed, Cushing saying 
46 The reference to 3 Dallas is a mis-citation. 



192 THE RELATION OF THE 

that, although in his opinion they had "the same power 
that a Court of the state of Georgia would possess, to 
declare the law void, I do not think the occasion would 
warrant an exercise of the power"; while Chase wrote 
of an unconstitutional law being void : 

Yet, it still remains a question, where the power re- 
sides to declare it void. It is, indeed, a general opinion, 
it is expressly admitted by all this bar, and some of the 
Judges have, individually, in the Circuit Courts, decided, 
that the Supreme Court can declare an Act of Congress 
to be unconstitutional, and therefore, invalid; but there 
is no adjudication of the Supreme Court itself upon the 
point. 

True though these last words were, yet all the 
gathering forces and all the signs of the times foretold 
plainly enough that such a decision of the highest court 
was near to hand; and before three )^ears of the new 
century had gone by, Marbury v. Madison arose, and 
Marshall received for his opinion perhaps more praise 
than was due, but still it was written with all the clear 
reasoning of the great Chief Justice, and has never 
since been departed from among us. 

Before proceeding to it, however, it will be well 
to recall to the reader that (as others have already 
noticed) the Legislative Department had passed at 
least one law directing a test case to be brought before 
the Judiciary, in order to ascertain the opinion of the 
highest court on the constitutionality of a law. This 
had been done as to the controverted Pension Law of 
1792, and the validity of decrees made by the judges 



JUDICIARY TO THE CONSTITUTION 193 

sitting as commissioners after their refusal to hear 
the cases as a court. 47 Surely, for the Legislature to 
appeal to the Judiciary for its opinion on the consti- 
tutionality of a law, which the Legislature has itself 
enacted, is a striking example of the recognition of 
the Judicial Power. 

In one other instance the Legislative Department 
discussed the general problem, and by an enormous 
preponderance of voices added its evidence to the proof 
that the Judiciary did rightfully possess the power it 
was now claiming all over the country. In 1802, upon 
the repeal by the triumphant Republicans of the Judi- 
ciary Bill, which they feared would saddle them for 
many years with the Federal Judges 'appointed in such 
unbecoming haste in the last days of John Adams's 
presidency, the question was discussed by numbers of 
Senators and Representatives whether or not such a 
law would be unconstitutional and could be held void 
by the Judiciary. The debate is far too long and 
scattering to be gone into here, but Mason of Massa- 
chusetts; Tracy, Dana, and Griswold of Connecticut; 
Gouverneur Morris of New York (a member of the 
Convention of 1787) ; Ross and Hemphill of Pennsyl- 
vania; Bayard of Delaware; Smith of Vermont; John 
Rutledge of South Carolina (a member of the Con- 
vention of 1787); Dennis of Maryland, and Hender- 
son and Stanley of North Carolina, all spoke of the 
doctrine with approval, while only Stevens T. Masort 
of Virginia, Stone of North Carolina, and Brecken- 

47 Ante, p. 184. 



194 THE RELATION OF THE 

ridge of Kentucky seem to have been on the other 
side. 48 

To indicate how fully the Judicial Power was al- 
ready accepted, it may be stated that Hemphill spoke 
in this early debate of its denial as "a doctrine new 
and dangerous" ; while Henderson said that, if Con- 
gress can repeal the Judiciary Act, the Judiciary are in 
control of the Legislature, and 

Whatever the Legislature declares to be law must be 
obeyed. The constitutional check which the judges were 
to be on the Legislature is completely done away. They 
may pass ex post facto laws, bills of attainder. . . . The 
monstrous and unheard of doctrine which has been lately 
advanced, that the judges have not the right of declaring 
unconstitutional laws void, will be put into practice by 
the adoption of this measure [i. e. y by the repeal of the 
Judiciary Act]. 

48 For Henderson and Stanley, see Benton's "Abridgment," Vol. 
II, pp. 599, and 6oi. For the rest see "Review of Vol. XII of 
Sergeant and Rawle's (Penna.) Reports/' and especially of 
Judge Gibson's denial of the judicial power in Eakin v. Raub 
reported in that volume, in Amer. Quar. Review, Vol. II, pp. 
186-214. This "Review" was said by Chas. J. Ingersoll in his 
speech in the Pennsylvania Constitutional Convention of 1838 
upon the repeal of bank charters to be by Judge Hopkinson, 
but I am unable to demonstrate that such was the case. Judge 
Hopkinson's grandson, Edward Hopkinson, Esq., of the Phila- 
delphia bar, tells me that he knows nothing in regard to whether 
the review was written by his grandfather or not. It at least 
certainly came from an able pen. The fact must be borne in 
mind that partisanship entered strongly into the debate. I used 
these details in my article "Some Recent Attacks on the Ameri- 
can Doctrine of Judicial Power" in Amer. Law Rev. (1906), 
Vol. XL, pp. 641-670: see especially, p. 652. I have not verified 
the list of names of the author of the "Review," but the words 
quoted in the text from Henderson are taken by myself from 
Benton's "Abridgment." 



JUDICIARY TO THE CONSTITUTION 195 

Here was, — by the very early days of the nineteenth 
century and within fifteen years from the date when 
the Constitution went into effect, — an overwhelming 
mass of decision and opinion asserting the power of 
the Judiciary in regard to unconstitutional laws, and 
there was extremely little contrary opinion, — only 
some scattering views of individuals and a few con- 
tests made in the Legislatures, whose possible powers 
were so greatly shorn by the rapidly growing principle. 

And the decisions made covered the whole field. 
They were not at all confined to State laws violating 
the Constitution of the State or the Federal powers, 
but laws passed by Congress without authority under 
the Federal Constitution had equally been held in 
several instances to be subject to the same sifting 
process in the Courts. The belief in this latter branch 
of the subject, as well as in the voidness of unauthor- 
ized State laws, was well-nigh universal, and rapidly 
coming to be an established principle, — a new chapter 
of the law, well known to lawyers, and used by them 
in the study and preparation of their cases. 

The only difference still existing in regard to un- 
authorized laws of the Federal Government and of 
the States, was that there had as yet been no decision 
in the former class of cases, in the highest Court of 
the Union, — as there had been in a number of in- 
stances in the Supreme Courts of the States. The 
Federal decisions were all as yet in the lower Courts, 
but this difference was swept away as early as 1803 
by Marbury v. Madison. The indications had been 
overwhelming that such would be the outcome, as the 



196 THE RELATION OF THE 

principle kept spreading steadily: but the final step 
cam^^erhaps sooner than is often the case in the 
evolution of governmental principles. 
y Marbury v. Madison grew out of a partisan quarrel. 
When the Federalists were defeated in the election 
of 1800 and Jefferson was elected to the Presidency, 
the defeated party aimed to fill up all the offices with 
their adherents, and this was perhaps especially the 
case as to judicial positions, the incumbents of which 
could not at once be dismissed by the incoming Repub- 
licans. Down to the very end of his term, John 
Adams was making appointments to vacant and new 
offices, and a number of the commissions had not yet 
been actually delivered when he went out of office. 
Some such commissions appointing Justices of the 
Peace for the .District of Columbia were found in the 
Secretary of State's Office by Madison, the incoming 
Secretary. They were not delivered by him. 

William Marbury and three others, named as Jus- 
tices of the Peace in such undelivered commissions, 
thereupon applied in December, 1801, to* the Supreme 
Court of the United States for a writ of mandamus 
to command Madison to deliver their commissions to 
them. They were represented by Charles Lee, Attor- 
ney-General under the late administration ; their claim 
being that, as the nominations had been made by the 
President and approved by the Senate, and commis- 
sions then made out and duly recorded in the State 
Department, their appointment to a judicial office was 
complete, and the commissions must be delivered. 
The delivery, it was maintained, was a mere minis- 



JUDICIARY TO THE CONSTITUTION 197 

terial act, to which the Secretary of State could be 
compelled by judicial process. 

No one appeared or argued the case on behalf of 
the defense, as the administration looked upon the 
proceeding as entirely unauthorized, and declined to 
recognize it in any way. And when (in accordance 
with the practice in cases of mandamus) a rule on the 
defendant to show cause why the writ should not issue, 
was granted, Madison took no notice of it whatever. 

At a later term, on final hearing, the case was argued 
by Lee on behalf of the plaintiff alone, and all the 
main contentions of the plaintiff were sustained by 
the Chief Justice in an argument of no little length; 
but the opinion did not stop here. It went on to show 
that the Supreme Court had no jurisdiction at all 
in the case, owing to a flaw in the method adopted to 
get at the result desired. It was true that the law of 
Congress establishing the Courts authorized the Su- 
preme Court 

to issue writs of mandamus, in cases warranted by the 
principles and usages of law, to any . . . persons hold- 
ing office, under the authority of the United States. 

But was this statute authorized under the terms of 
the Constitution, which provided that 

The Supreme Court shall have original jurisdiction in 
all cases affecting ambassadors, other public ministers 
and consuls, and those in which a state shall be a party. 
In all other cases, the supreme court shall have appellate 
jurisdiction. 



/ 



198 / THE RELATION OF THE 

Copld Congress confer original jurisdiction on the 

Supreme Court in a case of mandamus, or in any case, 

except those enumerated by the Constitution ? 

/This was the great constitutional question which 

^Marshall discussed, — at no great length, — -and reached 

/ i the conclusion that Congress could not do so, that 
the statute conferring original jurisdiction in such 
case was unconstitutional and void. The rule for a 
mandamus was therefore discharged and, so far as is 
known, no* further proceedings were taken in the mat- 
ter, despite the fact that Marshall had gone so far 
out of his way, into the regions of obiter dicta, 49 to 
indicate the proper legal method of raising the question 
that the plaintiffs sought to have determined. 

Marshall's argument on the constitutional point has 
been the subject of extravagant praise from some, 
Kent 50 speaking of it as "approaching to the precision 
and certainty of a mathematical demonstration, " but 
others have been less laudatory. The truth is that not 
much new could then be said upon the subject, for 
the ground had often been covered by others. The 
absolute necessity of the Judiciary's having the power 
to hold laws unconstitutional, unless our written Con- 
stitutions were to be waste paper and the limitations 
to fail utterly, was palpable, but perhaps a strong tech- 
nical argument could have been made that the limita- 
tions were directory to the legislators, and merely 
binding on their consciences, — as are undoubtedly 

* 9 Of course, the Republicans charged him with partisanship, 
and with apparent reason, for, when a court once decides that 
it has no jurisdiction, it has no further function. 

50 "Commentaries," Vol. I, p. 453. 



JUDICIARY TO THE CONSTITUTION 199 

many of the very similar commands contained in Con- 
stitutions. It will be best to let the opinion speak for 
itself, and the reader will certainly find in it the clear 
and logical method of the great Chief Justice, what- 
ever else may be said. 

The Constitution, he wrote, extends the judicial 
power of the United States to all cases arising under 
the Constitution, and then he asked whether it could 
be the intention that in such cases the Constitution 
should not be looked into, — that a case arising under 
the Constitution shall be decided without examining 
the instrument under which it arises? "This is too 
extravagant to be maintained." The oath required 
of the Judges was also borne upon, as well as the 
immorality of imposing it on them, "if they were to 
be used as the instruments, and the knowing instru- 
ments, for violating what they swear to support." 
But the following seems to be the main portion of his 
proof of "the principle, supposed to be essential to 
all written constitutions, that a law repugnant to the 
constitution is void; and that courts, as well as other 
departments, are bound by the instrument" : 

The question, whether an act, repugnant to the con- 
stitution, can become the law of the land, is a question 
deeply interesting to the United States ; but, happily, not 
of an intricacy proportioned to its interest. It seems 
only necessary to recognize certain principles, supposed 
to have been long and well established, to decide it. 

That the people have an original right to establish, for 
their future government, such principles as, in their opin- 
ion, shall most conduce to their own happiness is the 



200 THE RELATION OF THE 

basis on which the whole American fabric has been 
erected. The exercise of this original right is a very 
great exertion; nor can it, nor ought it, to be frequently 
repeated. The principles, therefore, so established, are 
deemed fundamental. And as the authority from which 
they proceed is supreme, and can seldom act, they are 
designed to be permanent. 

This original and supreme will organizes the govern- 
ment, and assigns to different departments their respec- 
tive powers. It may either stop here, or establish certain 
limits not to be transcended by those departments. 

The government of the United States is of the latter 
description. The powers of the legislature are defined 
and limited; and that those limits may not be mistaken, 
or forgotten, the constitution is written. To what pur- 
pose are powers limited, and to what purpose is that 
limitation committed to writing, if these limits may, at 
any time, be passed by those intended to be restrained? 
The distinction between a government with limited and 
unlimited powers is abolished, if those limits do not con- 
fine the persons on whom they are imposed, and if acts 
prohibited and acts allowed, are of equal obligation. It is 
a proposition too plain to be contested, that the consti- 
tution controls any legislative act repugnant to it ; or, that 
the legislature may alter the constitution by an ordinary 
act. 

Between these alternatives there is no middle ground. 
The constitution is either a superior paramount law, un- 
changeable by ordinary means, or it is on a level with 
ordinary legislative acts, and, like other acts, is alterable 
when the legislature shall please to alter it. 

If the former part of the alternative be true,, then a 
legislative act contrary to the constitution is not law : if 



JUDICIARY TO THE CONSTITUTION 201 

the latter part be true, then written constitutions are 
absurd attempts, on the part of the people, to limit a 
power in its own nature illimitable. 

Certainly all those who have framed written constitu- 
tions contemplate them as forming the fundamental and 
paramount law T of the nation, and, consequently, the 
theory of every such government must be, that an act of 
the legislature, repugnant to the constitution, is void. 

This theory is essentially attached to a written consti- 
tution, and, is consequently, to be considered, by this 
court, as one of the fundamental principles of our so- 
ciety. 

With this decision in the highest court of the coun- 
try, the power in question became, in fact, settled. 
That Marbury v. Madison was a potent factor in the 
history of the matter cannot be doubted; but this was, 
I think, owing to the elevated platform from which 
Marshall spoke, and to the fact that the decision stood 
out as the culmination of a long and gradual growth, 
rather than to any very remarkable power of argument 
contained in the opinion. 

Since the decision of Holmes v. Walton in 1780, 
the power of the Judiciary has been exercised in our 
country in hosts upon hosts of cases. Many thousand 
State laws have, beyond doubt, been held invalid in 
the States themselves, because of violating either the 
Constitution of the State in question or that of the 
United States. By 191 2 as many as 223 State laws 
and 23 municipal ordinances had been held void by 
the Supreme Court of the United States, on the ground 



202 THE RELATION OF THE 

that they conflicted with the Federal Constitution, and 
33 laws of Congress had met the same fate, because 
they were held not to be authorized under that instru- 
ment. 51 These cases, too, were scattered over the 
whole period in question, though by far the greater 
number of those in relation to laws of the United 
States occurred after 1830, and they were carried into 
effect, in the vast majority of instances, without dis- 
pute. 

In the very early days of the doctrine, Trevett v. 
Weeden was violently denounced, and the Judges not 
reelected; Rutgers v. Waddington was equally de- 
nounced by a section of the public; Bayard v. Single- 
ton was a subject of earnest dispute, and others of the 
earliest cases did not go without protest, but in general 
the exercise of the Judicial Power was readily accepted 
or even welcomed. 

Of course, there continued to be for a number of 
years sporadic expressions of opinion to the contrary. 
Thus, in Pennsylvania in 1808, in Emerick v. Harris, 52 
it was strenuously argued before the Supreme Court 
of the State, by very eminent counsel, that the Judi- 
ciary did not possess the power in question, and the 
Court went into an argument of some length to prove 
the existence of such power. Again, as late as 1843 
the same argument was once more made in Penn- 
sylvania, in Commonwealth v. Mann. 53 The denial of 

51 B. F. Moore's "The Supreme Court and Unconstitutional 
Legislation" (Columbia College Studies, Vol. 54, No. 2), Chap- 
ter III. The author's tables include decisions rendered in 191 1. 

62 1 Binney, p. 416. 

53 5 Watts and Sergeant, p. 503. 



JUDICIARY TO THE CONSTITUTION 203 

the power in the same State by Judge Gibson, — except 
so far as related to State laws violating the Federal 
Constitution, — in his dissent in Eakin v. Raub 54 in 
1825, is well known, but this very able Pennsylvania 
judge recalled this opinion in 1845 m Menges v. Wert- 
man. 55 Like cases probably exist in other States. 

In the 'earlier years of the nineteenth century, too, 
there were a few wide-extended and bitter contests, 
more or less of a political nature, over the question 
in several of our States; Ohio, Georgia, Kentucky, 
South Carolina, 56 and perhaps other States, were the 
scenes of such struggles. But in all these instances, 
despite the fire and fury which accompanied them, not 
only did the particular decision stand, but the doctrine 
was enforced in other cases, and was ere long generally 
recognized to be established law. In all our States, as 
well as in the sphere covered by the United States, 
the Power of the Judiciary came in time to be not only 
accepted but to be appealed to, — much as the writ of 
habeas corpus is appealed to, — as a palladium of our 
liberties. The contests all fell by the wayside, as inci- 
dents of little moment, while the public accepted more 

64 12 Sergeant and Rawle, p. 330. 

55 1 Penna. State Reports, p. 218. See also Norris v. Clymer, 
2 ibid., p. 281. 

56 Some account of these contests will be found in Baldwin's 
"American Judiciary/' pp. 111-16. See also J. B. Thayer's 
"American Doctrine," etc., Harvard Law Review, Vol. VII, p. 
8, etc., and for the contest in Ohio, see Western Law Monthly 
(June, 1863), Vol. V, p. 4, etc. For the contest in South Caro- 
lina, I can give no certain reference, but am satisfied that in 
the correspondence of Charles Jared Ingersoll (M. C. 1813-15) 
I saw a letter (dated between 1818 and 1825?) from a friend 
in South Carolina who had been in Congress with him, refer- 
ring to the dispute there. 



204 THE RELATION OF THE 

and more widely the view that a statute in violation 
of either the State or the Federal Constitution is void, 
and that it is the function of the Judiciary so to decide 
in any law case depending before them. The una- 
nimity was long astonishing. 

For this very reason, the outburst of recent years 
against our well-established doctrine is most remark- 
able. Launched, as it seems, by a few Progressives, 
it was beyond doubt the expression of some latent 
popular feeling; for it has certainly gained strength, 
and no one can now tell what the outcome may be. 
There is a wide-spread feeling in the body politic that 
constitutional limitations are a mere hindrance, and 
that the majority voice of the people of this vast coun- 
try should have undisputed sway in all things, despite 
the fact that the limitations were, of course, written 
into the Constitution for the express purpose of curb- 
ing the brute majority, and in order to protect the 
rights of a minority. But this historic truth may well 
in the end go for nought, in a time when our country 
is engaged in such a furious war as that of to-day. A 
body composed of a few fallible men sitting as a Court, 
and perhaps holding unconstitutional and void some 
vital element in the system of taxation or other essen- 
tial branch of the administration of a great Empire, 
might be very inconvenient, if not even destructive, in 
a time such as that we live in. 

But the war of to-day will not last forever, nor 
was the propaganda started with it in view. Probably, 
the real motive, whether conscious or unconscious, of 
these gentlemen was that they might be able to enact 



JUDICIARY TO THE CONSTITUTION 205 

all sorts of socialistic legislation, to try raw experi- 
ments which a few of their number might dream out 
as a sure-cure for the little rubs which, under the ex- 
isting system, do undoubtedly arise. 

Many of our public men, and even of our most 
known leaders, have for a number of years shown 
the tendency, to which reference has been already 
made, to be highly impatient under the restrictions 
of constitutional or legal limitations. These restric- 
tions stand, in their view, for mere impediments to 
be gotten rid of, in order that they may work out with 
a free hand any pet theory of the moment. And this 
tendency is of older date than some think. Andrew 
Jackson was probably the first of our Executives to 
show it; and he was ever convinced that his pet beliefs 
were entitled to supreme sway. His successors for 
some years had far less of the tendency; but in modern 
days it has grown again with giant strides, and now 
the furious war of the Germans has added an enor- 
mous impetus. 

That the tendency in question is most serious and 
likely to have far-reaching consequences in many ways 
is certain; but in regard to the question of Judicial 
Power, its dangers seem more menacing and perhaps 
more imminent than in other directions. A highly 
progressive member from a new Western State has al- 
ready proposed in the Senate to curb the Judicial 
Power by a statute providing in effect for the removal 
of any Federal Judge, by the mere passage of a Con- 
gressional resolution calling upon the President to 
nominate his successor. Other proposals in the same 



206 THE RELATION OF THE 

general direction have also been made, and soon after 
the Civil War some politicians, who were displeased 
at certain decisions of the Supreme Court, wanted to 
require two-thirds of the Court, in order to hold 
an act of Congress void, and to authorize the removal 
of Judges upon legislative address, as well as to ap- 
point a special tribunal to decide constitutional ques- 
tions. But none of these plans has as yet had any 
success. 57 

We have lived so long under the old system, and our 
legislatures had come to depend upon it so generally, 
that to oust the historical Judicial Power root and 
branch, even though it were done gradually, would 
probably land us in chaos. It would take many, many 
years for the hosts of American law-makers to acquire 
the habit of thinking carefully for themselves of ques- 
tions of constitutional right, — even assuming that they 
could ever do so, — and our many statute-books would 
certainly be loaded down with all sorts of raw statutes, 
not half thought out and sure to be very unjust to in- 
dividuals. 

But the future must take care of itself, and in some 
way our country may yet reach a safe anchorage and 
a system as good as, — or better than, — that which we 
have known in our day by a happy inheritance from 
our ancestors. The raw methods and ideas of the 
Progressives will in this event hardly continue to be 

57 "Congressional Record, 626. Cong., First Sess." p. 3359. 
Ibid., "63d Cong., First Sess., H, J. Res," 114. Ibid., 63d Cong., 
First Sess., p. 1052. I take these references from William S. 
Carpenter's "Judicial Tenure in the United States" (Yale Uni- 
versity Press, 1918), pp. 140-42. 



JUDICIARY TO THE CONSTITUTION 207 

those controlling our public affairs, even if this faction 
should succeed in breaking down much that we in- 
herited, and mortising into our system some of their 
socialistic and paternal-government principles, — all, 
curiously enough, derived in the main from the system 
prevailing in the German Empire under the benign 
rule of Bismarck and the Hohenzollerns, which system 
we and other nations are to-day struggling with our 
utmost power to break down, so as to render the world 
"safe for Democracy. ,, 



CHAPTER X 

THE DEGREE OF CONCLUSIVENESS ATTACHING TO JUDI- 
CIAL DECISIONS. EARLY BELIEFS ON THE SUBJECT. 
THE FUTURE. 

There remains one other very important subject in 
relation to Judicial Power, of which it is my intention 
to treat in this book, — though by no means exhaust- 
ively. That would lead us far afield and touch upon 
many instances reeking with partisanship, and hence 
would be very likely to be misleading. Perhaps the 
point I refer to may be indicated by the question: Is 
the American Doctrine properly described as of Judi- 
cial Power, or of Judicial Supremacy? 

One of the very recent books upon the subject is 
even named "The American Doctrine of Judicial 
Supremacy/' and there can be no shadow of doubt but 
that among the public in general, as well as by many 
students, the view is absolutely accepted that opinions 
of the Judiciary bind and conclude the President, Con- 
gress, and all the rest of the world. When the Courts 
have decided, for instance, that Congress possesses, 
or does not possess, a certain power under the clause 
to regulate commerce among the States, or that the 
President can be deprived of his unlimited constitu- 
tional power of appointment to new offices, by a Con- 

208 



JUDICIARY AND CONSTITUTION 209 

gressional statute making appropriations for certain 
work "to be done under the supervision of 1 So-and-So, 
there is, according to this view, no question but that 
the President must nominate this particular person. 
So Johnson's right to refuse to obey laws, which in 
his opinion impaired his constitutional right to com- 
mand the army, or his right of removal from office, 
is absolutely denied by these gentlemen. 

They say that it is the "peculiar function" of the 
Judiciary to interpret the Constitution, and there is 
undoubtedly a sense in which these words are true; 
but such general phrases are likely to be very mis- 
leading, and often result in grave error when applied 
to all circumstances. One well-known author, arguing 
that decisions of the Courts are conclusive on the other 
departments, writes that 

The authority of a decision . . . comes from the fact 
that it is an exercise of the judicial power of the govern- 
ment in a case for the disposal of which this judicial 
power has been properly invoked. 1 

But why should such a judicial decision carry any 
more weight, in regard to the underlying general prin- 
ciple involved, than an opposite and perhaps earlier 
conclusion of Congress, or of the President, rendered 
in a like case for which its, or his, power has been 
properly invoked? The special controversy of the 
individuals concerned is, of course, settled and ended 
by the judicial decision; but why should this be car- 



1 «' 



The American Judiciary," by Simeon E. Baldwin, pp. 
57, 58. 



210 THE RELATION OF THE 

ried to the extent of holding that the opinion of the 
Court as to the meaning of the Constitution is to be 
accepted as a finality ? 

It can hardly be questioned,— and later pages will 
demonstrate this fact, — that in all our history, down 
at least to comparatively recent years (and the same 
view is still held by not a few), the doctrine was by 
no means admitted that judicial decisions interpreting 
the Constitution conclude the other great departments 
of government in regard to the meaning of that in- 
strument, — especially when the extent of the powers 
of the department in question is concerned. They 
never are heard, and probably have not even the poor 
right to be heard, upon the argument of the litigation 
in question. How, then, has it come to be thought, in 
the teeth of the early beliefs and of a long line of 
precedents, tfrat they are concluded ? 

The growth of this view has been a gradual one, 
and is evidently the result of the nature and method 
of the Judiciary's functions. The Judiciary have un- 
doubtedly the right/and it is their peculiar function, to 
interpret the Constitution in law-suits before them, in 
so far as relates to the rights of all parties litigant. 
The very purpose of their existence is to settle dis- 
putes, and prevent violence and private feuds between 
citizens. Their decisions, too, become quickly "prec- 
edents" of practically binding force, so far as relates 
to the rights of all citizens, and this additional force 
accorded to their interpretations ever tends to spread, 
have wider influence and to be accepted by all the 



JUDICIARY TO THE CONSTITUTION 211 

world, much as if their interpretation were a dictionary 
clause written into the Constitution or statute. 

Nor is even this all that gives strength to the opin- 
ions of the Courts. From their very nature and method, 
they have the most persuasive influence on all the 
world. The earnest effort to reach an impartial con- 
clusion, the extensive arguments of counsel, in leading 
cases sure to be men of brilliant intellect and of vast 
experience, who have ransacked the world in the search 
for knowledge of the subject from all points of view, 
and the carefully weighed decisions, — the gist, in im- 
portant cases, of all the long history of mankind, — 
properly give to judicial opinions a persuasive weight, 
which belongs to but few things of human origin. 

But it does not follow from all this that they bind 
the other primordial branches of the Government; that 
they can, for instance, conclude the President as to a 
question of his power, under the terms of the Constitu- 
tion, to command the army or to remove from office. 
The written Constitution has said in most specific 
words that "the President shall be Commander-in- 
Chief of the army," and shall have the right to appoint 
to office, and again (by implication) the right to re- 
move from office. When, then, a question arises as to 
his right of command under these words, or as to his 
right to appoint whom he pleases, or to remove at will 
a hostile or otherwise uncongenial officer, he must de- 
cide for himself what is the meaning of these words 
of the Constitution, precisely as the Courts must do 
when they are called upon in a suit to enter a decree 
concerning the rights of litigants under some statute 



212 THE RELATION OF THE 

and these or other words of the Constitution. To ac- 
cept always the opinion of the Judiciary in such cases 
as to the power of the Executive, or of Congress, would 
accord to one mere department, among several of equal 
authority, an absolute control very hostile to the genius 
of Anglo-Saxon as of popular government. 

This question of the right of the different govern- 
mental departments to act for themselves within the 
scope of their authority, as each may understand the 
constitutional provisions, is not confined to disputes 
between the Judiciary and some other coordinate 
branch, but is a general one, and may arise between 
any two Departments, or between the branches of the 
Legislature, as well as in other instances. The same 
general rule ought to obtain in all such cases; and the 
better opinion and only workable theory seems clearly 
to be that each Department or agency is free, — in ab- 
stract right as well as in actual fact, — -to proceed upon 
its own interpretation of the Constitution and under- 
standing of the circumstances. That they have this 
power in actual fact and have often exercised it is 
certainly true, and the distinction is a very shadowy 
one, which concedes this truth, and yet maintains that 
theoretically the Department concerned is obliged to 
follow the expressed opinion of some other Depart- 
ment. 

Numbers of instances have occurred in history, in 
which the general question has arisen. When, for ex- 
ample, the President and Senate have made a Treaty 
wnth another Power, which calls for a money-payment 
by us, the affirmative action of the House of Repre- 



JUDICIARY TO THE CONSTITUTION 213 

sentatives is undoubtedly essential under our Constitu- 
tion to the payment of the money concerned. Is the 
House in such a case obliged in right, — of course, it 
cannot be actually compelled, — to go on at once and 
make the necessary appropriation, or has it the con- 
stitutional right to consider the merits of the question 
and even to refuse its assent? Has it any discretion 
in the matter? At times, the former theory has been 
strongly asserted, and this view would probably still 
find supporters ; but it seems that the prevailing opinion 
to-day is to the contrary, and admits that the House 
has in such a case a complete right to consider the 
merits of the matter. 2 At the time of the purchase of 
Alaska, 3 this seems to have been admitted, and it has, 
I think, been generally admitted since. The same view, 
moreover, prevails in England. 4 

Again, in England the Legislative Department has 
always been very determined in resisting control by 
the other branches, and the privileges of Parliament 
largely grew up through repeated struggles with the 

a I do not forget that national faith might in some cases make 
it very difficult or even impossible for the House justly to re- 
fuse its assent, but this is only one element of the problem. 
The treaty power is a very difficult subject, and especially in 
recent years some writers have claimed almost unlimited author- 
ity under the right to make treaties. But these writers claim 
too much, and it was certainly a very strange course for the 
Constitutional Convention to take such infinite trouble to limit 
the powers of the proposed government, and then by the treaty 
power to confer the right to do practically anything. 

•Adams's "Gallatin," p. 161. 

4 Lecky's "England," Vol. I, pp. 154-57. Schouler's "United 
States," Vol. I, pp. 308, 309, and note. McMaster's "United 
States," Vol. II, pp. 270-73. 



214 THE RELATION OF THE 

Judiciary and the Executive. 5 The Commons never 
admitted that the decrees of the Judiciary bound them. 
On the contrary, there are well-known instances in 
modern times, in which the popular branch violently 
denounced such decrees and prevented their enforce- 
ment. 

These were cases in which there was a clash be- 
tween some privilege claimed by the Commons, and 
the ordinary principle that a judicial decree in a suit 
between parties is final and must be enforced. In one 
of the cases, for example, the Courts held that there 
was a private libel contained in the Report of a Com- 
mittee of the Commons, published by the latter' s com- 
mand, and a judgment was accordingly entered against 
the public printer; while the Commons, on the other 
hand, would not permit this judgment to be executed, 
but asserted their privilege, that it was for them to de- 
cide what it Was proper to order printed. 6 Otherwise 
(such was doubtless their view), they could not legis- 
late intelligently and to the best interests of the public. 

Here seems to be a strange difference of view and 
of action between ourselves and the country from 
which we took our origin. In our supposed "turbu- 
lent' ' democracy, the decrees of the Judiciary, telling 
the Legislature or the Executive the limits of their 

5 See, e.g., Hallam's "Constitutional History of England," Vol. 
I, pp. 268-75, 302, 303: Vol. II, pp. 43, 440 et seq.: Vol. Ill, pp. 
21 et seq., 27-32, 264 et seq., 271-74, 278. 

8 Stockdale v. Hansard, 9 Ad. and El., i; 11 Ad. and El., 253, 
273, 297; Wason v. Walter, L.R. 4 Q.B. 73; Hallam's "Const. 
Hist/- etc., Vol. Ill, pp. 271-84; Campbell's "Life of Brougham," 
Chap. 228 (Ed. Estes & Lauriat, Boston, 1875, pp. 491-93) ; 
May's "Constitutional History of England," Vol. I, pp. 423-26. 



JUDICIARY TO THE CONSTITUTION 215 

powers, are apparently to be accepted absolutely, at 
once, and with docility ; while in the limited monarchy, 
the Parliament, and more especially the Commons, 
burst out into a fury of turbulence and of excessive 
passion when the Courts render a decree trenching 
upon an action of the Commons. How did this differ- 
ence come about, and what was the origin of the belief 
in Judicial Supremacy held to-day by many in our 
country ? 

There were, of course, in the early days of the doc- 
trine all manner of doubts and difficulties, and some 
curious and interesting opinions were expressed. Thus, 
Iredell wrote in 1786, in his Letter of an "Elector," 
rather taking the view that the Judges, should they 
enforce an unauthorized statute, would, perhaps, be 
incurring some serious liability. To quote his as- 
sertion : 

The judges, therefore must take care at their peril, 
that every act of Assembly they presume to enforce is 
warranted by the constitution, since if it is not, they act 
without lawful authority. 7 

On the other hand, the erratic Judge Chase, of the 
United States Circuit Court, in the very same breath 
in which he wrote in 1800 that an unconstitutional 
statute was void, went on 8 to say : 

Yet, it still remains a question where the power resides 
to declare it void. It is, indeed, a general opinion, it is 
expressly admitted by all this bar, and some of the Judges 

7 Quoted ante, p. 112. 

8 Cooper v. Telfair, 4 Dallas, 14. See ante, pp. 190-192. 



216 THE RELATION OF THE 

have, individually, in the Circuit Courts, decided, that 
the Supreme Court can declare an act of Congress to be 
unconstitutional, and, therefore, invalid; but there is no 
adjudication of the Supreme Court itself upon this point. 

Chase's colleague, Cushing, was, on the other hand, 
already of opinion that they did have the power. This 
same question had been touched upon, too, in the Pen- 
sion Cases in 1792, and the partisan Aurora, 9 which 
supported the refusals of the Judges to act under the 
statute there in question, stated that the opponents of 
Judicial Power admitted that, according to their view, 
there was no agency, short of a Constitutional Conven- 
tion, which could decide a statute unconstitutional. 

Here was almost a reductio ad absurdum, and here 
we may doubtless find one of the controlling reasons 
why the Courts took up the power. As has been said 
before in these pages, and as thousands have clearly 
seen, unless they had done so, all the carefully drawn 
provisions and restrictions of the Constitution would 
have been futile, and the discretion of Congress have 
become our only Constitution. The absolute necessity 
of the case was palpable, and it is not characteristic 
of a competent people to draw up an elaborate instru- 
ment and then fail to find a means to enforce it. Prior 
pages have shown, too, many other tendencies in our 
earlier history, which pointed clearly to the conclusion 
to which our ancestors came upon this point. 

At the same time, while some held these doubts in 
the early days under our present Constitution, there 

9 Aurora (Philadelphia), April 20, 1792. See ante, p.182. 



JUDICIARY TO THE CONSTITUTION 217 

was no dream on the part of our Courts of claiming 
what has since come to be called "Judicial Supremacy." 
When they began to decide, with no little hesitation, 
that in a law-suit pending before them they could hold 
a statute unconstitutional and hence refuse to enforce 
it, they were very careful not to assert even a Judicial 
Superiority. As it was, they were charged with "dis- 
pensing with laws," 10 — a very unpopular relic of the 
Stuart kings. Supremacy was not in their dreams, and 
equality was all they claimed, — that, as they were one 
of the great primordial Departments established by the 
Constitution, it could not be their duty to accept slav- 
ishly and against their clear convictions of the mean- 
ing of the instrument, the conclusion of a partisan 
majority of the legislature that it had power to pass a 
law, for example, depriving a citizen of his property 
without a trial by jury. "The obligation of their oaths 
and the duty of their office" was much borne upon 
in the anxious opinion in Bayard v. Singleton. 

In one of the earliest cases, too, one of the judges 
wrote that he did 

not consider the judiciary as the champions of the people 

or of the constitution, bound to sound the alarm and to 

excite an opposition to the Legislature. But when the 

causes of individuals are brought before the judiciary, 

they are bound to decide. 

And if one man claim under an act contrary to the 

constitution, that is, under what is no law (if my former 

position that the Legislature can not impugn the consti- 

10 In North Carolina, at the time of Bayard v. Singleton. See 
Battle's "Address on the History of the Supreme Court," printed 
in 103 North Carolina, pp. 445 et seq.; 470, 471. 



218 THE RELATION OF THE 

tution, and consequently that an act against it is void, be 
just) must not a court give judgment against him? 11 

At a much later date, this limited view of their 
power was still held, and the matter was thus summed 
up by an able pen (perhaps Judge Hopkinson) in 1827, 
nearly fifty years after the first decision of the kind 
was rendered: ^ 

We must always bear in mind, that the judiciary do 
not claim a right directly to annul an Act of the Legisla- 
ture, by virtue of a superior or superintending power 
over that department. . . . No such interference with 
the legislature is pretended — no such superiority over 
them claimed. But when the judiciary are called upon 
to execute the illegal act — to become parties auxiliaries 
to the usurpation, they may, not as a superior, but as a 
coordinate branch of the government, refuse their par- 
ticipation in the wrong. 12 

Other citations to this same general effect, from 
judicial decisions and from writers of authority, could 
probably be found, but the following only will be 
quoted. It comes from a "Note" to the case of White 
v. Kendrick 13 in South Carolina in 1805. The un- 
known author, after speaking of its being plainly the 
power and duty of courts to declare void all laws con- 
trary to the Constitution, goes on : 

11 Nelson, in Kamper v. Hawkins, 2 Virginia Cases, p. 201. 

"Article already cited from an anonymous writer in The 
Amer. Quarterly Review for 1827, Vol. II, pp. 186, etc., 213. 
See ante, p. 194. 

13 1 Brevard p. 469. 



JUDICIARY TO THE CONSTITUTION 219 

This right implies no superiority of the judiciary to the 
legislative power. Each department of the government 
is the constitutional judge of its own powers; each within 
its own sphere. The legislative body may enact a law, 
which they may conceive to be constitutional, but the 
judiciary may refuse to execute it, if they believe it is 
not so. 

How, then, did the belief in Judicial Supremacy 
originate? It is curious to find that in 1802 it was 
threatened by an orator in Congress, as likely to grow 
out of the very modest claims then making for that 
branch of government. 

To quote Stevens T. Mason when, in 1802, he spoke 
on the proposed repeal of the Judiciary Act: 

They [the judges] may, as gentlemen have told us, hold 
the constitution in one hand, and the law in the other, 
and say to the Departments of Government, so far shall 
you go and no farther. This independence of the Judi- 
ciary so much desired, will, I fear, sir, if encouraged or 
tolerated, soon become something like supremacy. 14 

The earliest approach to a claim of judicial finality 
known to me is to be found in a statement of Madi- 
son's, that at the time of the Alien and Sedition Acts, 

the principle was asserted . . . that a sanction given 

to the Acts by the supreme judicial tribunal of the Union 

was a bar to any interposition whatever on the part of 

the States, even in the form of a legislative declaration 

that the acts in question were unconstitutional. 15 

"Benton's "Abridgment," Vol. II, pp. 556, 557. 
15 Paper of 1836 on "Nullification," in "Works," by Congress, 
1865, Vol. IV, p. 396; and see pp. 403, 404, 509. 



220 THE RELATION OF THE 

But, whatever partisanship there may have been in 
this contention, probably the real origin of it, and of 
the claim in general for Judicial Supremacy, is to be 
found in the nature of the action of the Judiciary. 

One phase of this has already been referred to, but 
there is another. The vast majority of instances come 
to that branch for final governmental action. Congress 
passes a tax-law, the Treasury proceeds to carry it 
out, and, in case there is a dispute as to the power, 
the Judiciary is then called upon, and its action in 
such cases must end the matter, unless some other 
Department undertakes very unusual methods. Prob- 
ably the great majority of laws find their final execu- 
tion in this way at the hands of the Courts, — all the 
vast mass of legislation relating to contracts, deeds, 
wills, promissory notes, corporations, and the thousand 
other matters which concern the usual routine of busi- 
ness affairs and of domestic relations. 

In all these cases, the world at large inevitably grows 
used to looking to the Courts for the settlement of the 
meaning of statutes and of the Constitution. Their 
interpretation, so far as each particular case is con- 
cerned, is at once accepted. It touches in its immediate 
effect only the citizen, and there is, hence, no one who 
can contest it. Their opinion, too, is soon applied in 
other cases and thus quickly acquires the weight that 
belongs to precedents in Anglo-Saxon countries. The 
world soon comes to look upon their interpretation as 
a part of the statute itself. 

It should be remembered, however, that the force 



JUDICIARY TO THE CONSTITUTION 221 

accorded by us to precedents does not by any means 
essentially and everywhere belong to them. In the 
Civil Law, generally, the rule is very different; and 
Sir Henry Maine tells us 16 that in Rome, where the 
magistrates held office for but one year : 

The decision of a Roman tribunal, though conclusive in 
the particular case, had no ulterior authority except such 
as was given by the professional repute of the magistrate 
who happened to be in office for the time. Properly 
speaking, there was no institution at Rome during the 
republic analogous to the English bench. 

But custom has with us greatly changed this view 
of Ancient Law, and precedents have acquired a vast 
authority. Growing, as they do, step by step, and acted 
upon in a thousand cases in the relations of men, — 
voluntarily as well as under the advice of counsel,— 
they naturally acquire great influence, and all the world 
tends to feel that they are final. Even the other co- 
ordinate Departments, — endowed though they are with 
equal authority by the instrument that created all, — 
are necessarily subject to this same tendency and in 
cases where the passions are not blazing up, and where 
their exercise of powers expressly conferred upon them 
is not concerned, are pretty certain to look to the rul- 
ings of the Courts for their guide. 

The busy officer, harassed by responsibility and the 
opposing contentions of parties interested, is often only 
too glad thus to lean upon the Judiciary, and to find dif- 
ficult questions solved for him. And every time that an 
18 "Ancient Law/' 1st edition, pp. 34, 35. 



222 THE RELATION OF THE 

Executive officer does in this way appeal to the rulings 
of the Courts and base himself upon their authority, 
he, of course, aids in the growth of Judicial Authority 
and even the establishment of their Supremacy. Man 
lives by custom and quickly falls into ruts. 

But, at the same time, nearly all through our history, 
there has been a series of instances in which the Ex- 
ecutive (the Legislature less frequently) has declined 
to accept the opinion of their sister department as con- 
clusive and as binding upon them. These have gen- 
erally, but not always, been cases in which the final 
step in the procedure in hand was to be taken by the 
Executive; and the question could not then, in the 
ordinary course of affairs, be brought before the Judi- 
ciary. 

If the President thinks, as Monroe did in a contro- 
versy with the Senate, 17 that he has the right under the 
Constitution "to appoint whom he pleases to an office 
newly created in the army, he will of course do so, 
and the Judiciary cannot interfere. Monroe did so 
think, and wrote: 

If the law imposed such restraint [limiting his choice 
to a certain class], it would in that case be void. 

The actual controversy here was with the Senate 
and, though proceedings to raise the question before 
the Courts were impossible, the case furnishes an in- 
stance of our system of checks and counter-checks; 
for the Senate persistently refused to confirm the ap- 
pointments, and Monroe was, hence, compelled to yield 

"Niles's Register, Vol. XXII, pp. 406, 407, 411, 415, 423. 



JUDICIARY TO THE CONSTITUTION 223 

this point. But in another controversy in the same 
matter, turning on the question of the President's right 
to transfer officers from one corps to the same grade 
in another corps, confirmation by the Senate not being 
necessary, Monroe carried his point and made the 
transfers. 

Nor was this claim of Monroe's an isolated instance 
in which the Executive had simply gone askew; but 
the like claim has been made in a number of cases 
by our Presidents, though not to my knowledge within 
fifty years, as well as by many of our leading men. 
Of our Presidents, in addition to Monroe, Jefferson, 
Madison, Jackson, Van Buren, Lincoln, and Johnson 
were all either engaged in such contests or asserted the 
view that the opinions of the Judiciary were not con- 
clusive, and some students of the Constitution still to- 
day maintain this opinion of our earlier years. 

These precedents and opinions of our leading men 
must be to some extent examined here, and it will be 
found that they not only reach back to our earliest 
days but are quite occasionally to be met in our history, 
down to at least shortly after the Civil War. 18 

Hamilton wrote in No. XLIX of the Federalist that 
frequent recurrence should be had to the people, not 
only to alter, when necessary, the powers of govern- 
ment, 

18 Many of the instances and opinions cited have already been 
used in my articles on "The Relation of the Judiciary to the 
Constitution," in American Law Review (March- April, 1885), 
Vol. XIX, pp. 175-203, and on "The Independence of the De- 
partments of Government," in ibid., Vol. XXIII, pp. 594-609. 



224 THE RELATION OF THE 

but also whenever any one of the departments may com- 
mit encroachments on the chartered authorities of the 
others. The several departments being perfectly coordi- 
nate by the terms of their common commission, neither 
of them, it is evident, can pretend to an exclusive or 
superior right of settling the boundaries between their 
respective powers; and how are the encroachments of 
the stronger to be prevented, or the wrongs of the weaker 
to be redressed, without an appeal to the people them- 
selves ; who, as the grantors of the commission, can alone 
declare its true meaning, and enforce its observance? 

And again in No. LI of the same treatise upon the 
Constitution, Hamilton wrote upon the general subject 
as follows: 

To what expedient then shall we finally resort, for 
maintaining in practice the necessary partition of power 
among the several departments, as laid down in the con- 
stitution ? Tfie only answer that can be given is, that as 
all these exterior provisions are found to be inadequate, 
the defect must be supplied, by so contriving the exterior 
structure of the government, as that its several constitu- 
ent parts, may, by their mutual relations, be the means 
of keeping each other in their proper places. . . . 

But the great security against a gradual concentration 
of the several powers in the same department, consists 
in giving to those who administer each department, the 
necessary constitutional means, and personal motives, to 
resist encroachments of the others. The provision for 
defense must in this as in all other cases, be made com- 
mensurate to the danger of attack. Ambition must be 
made to counteract ambition. The interest of the man 
must be connected with the constitutional rights of the 



JUDICIARY TO THE CONSTITUTION 225 

place. ... In framing a government, which is to be ad- 
ministered by men over men, the great difficulty lies in 
this : you must first enable the government to control the 
governed ; and in the next place, oblige it to control itself. 

Madison, also, wrote at some length upon the general 
subject in 1834, and summed up admirably the whole 
truth. The entire letter follows : 

Dear Sir : Having referred to the Supreme Court of 
the United States as a constitutional resort in deciding 
questions of jurisdiction between the United States and 
the individual States, a few remarks may be proper, 
showing the sense and degree in which that character 
is more particularly ascribed to that department of the 
government. 

As the legislative, executive, and judicial departments 
of the United States are coordinate, and each equally 
bound to support the constitution, it follows that each 
must, in the exercise of its functions, be guided by the 
text of the constitution according to its own interpreta- 
tion of it; and consequently, that in the event of irrecon- 
cilable interpretations, the prevalence of the one or the 
other department must depend on the nature of the case, 
as receiving its final decision from one or the other, and 
passing from that decision into effect, without involving 
the functions of any other. 

It is certainly due from the functionaries of the several 
departments to pay much respect to the opinions of each 
other ; and as far as official independence and obligation 
will permit, to consult the means of adjusting differences 
and avoiding practical embarrassments growing out of 
them, as must be done in like cases between the coordi- 
nate branches of the legislative department. 



226 THE RELATION OF THE 

But notwithstanding this abstract view of the coordi- 
nate and independent right of the three departments to 
expound the constitution, the judicial department most 
familiarizes itself to the public attention as the expositor, 
by the order of its functions in relation to the other 
departments; and attracts most the public confidence by 
the composition of the tribunal. 

It is the judicial department in which questions of con- 
stitutionality, as well as of legality, generally find their 
ultimate discussion and operative decision ; and the public 
deference to and confidence in the judgment of the body 
are peculiarly inspired by the qualities implied in its mem- 
bers; by the gravity and deliberation of their proceed- 
ings; and by the advantage their plurality gives them 
over the unity of the executive department, and their 
fewness over the multitudinous composition of the legis- 
lative department. 

Without losing sight, therefore, of the coordinate rela- 
tions of the three departments to each other, it may al- 
ways be expected that the judicial bench, when happily 
filled, will for the reasons suggested, most engage the 
respect and reliance of the public as the surest expositor 
of the constitution, as well in questions within its cogni- 
zance concerning the boundaries between the several de- 
partments of the government as in those between the 
Union and its members. 19 

James Wilson, another leading man in drafting our 
Constitution, wrote in 1790-91 : 

The independency of each power [or department of 
government] consists in this, that its proceedings, and the 
motives, views, and principles, which produce those pro- 

19 "Works" by Congress (1865), Vol. IV, p. 349- 



JUDICIARY TO THE CONSTITUTION 227 

ceedings, should be free from the remotest influence, 
direct or indirect, of either of the other two powers. But 
further than this, the independence of each power ought 
not to extend. Its proceedings should be formed without 
restraint, but when they are once formed, they should be 
subject to control . . . 

We are now led to discover, that between these three 
great departments of government, there ought to be a 
mutual dependency, as well as a mutual independency. 
We have described their independency; let us now de- 
scribe their dependency. It consists in this, that the pro- 
ceedings of each, when they come forth into action and 
are ready to affect the whole, are liable to be examined 
and controlled by one or both of the others. 20 

And, as if to show beyond the shadow of a doubt 
the broad principle that was in his mind in penning 
these words, Wilson had already said in the Ratifying 
Convention of Pennsylvania, immediately after refer- 
ring to the Judiciary's right to refuse to carry out an 
unconstitutional law: 

In the same manner the President of the United States 
could shield himself and refuse to carry into effect an act 
that violates the constitution. 21 

There could not possibly be a clearer assertion of the 
doctrine, which these pages seek to maintain. Wilson 
applied precisely the same rule of general independence 
to the Executive, as that which he applied to the Judi- 
ciary. Beyond peradventure, he was of opinion that 

20 "Lectures on Law," in "Works," Vol. I, pp. 409-n. 

21 "Pennsylvania and the Federal Convention," by McMaster 
and Stone, pp. 304-05. 



228 THE RELATION OF THE 

each Department had the right to interpret the Con- 
stitution for itself, when called upon to act officially, 
and he by no means admitted that the other Depart- 
ments must accept the decisions of the Judiciary as 
fixing the meaning of the Constitution. 

Jefferson, as is well known, instructed Madison to 
refuse to recognize the jurisdiction of the Supreme 
Court in Marbury v. Madison, and himself declined to 
obey a subpoena duces tecum in the Burr trial; 22 and 
his general opinion is well set forth in the following 
words: In suits before them, he wrote, the judiciary 

of course decide for themselves. The constitutional 
validity of the law or laws again prescribing executive 
action, and to be administered by that branch ultimately 
and without appeal, the executive must decide for them- 
selves also whether under the constitution they are valid 
or not. 

And further on, to make still more clear his meaning 
that each Department has the right to adhere to and 
defend its construction, he adds : 

It may be said that contradictory decisions may arise in 
such cases and produce inconvenience. This is possible 
and is a necessary failing in all human proceedings. 23 

Jefferson's opinion was identical with that just 

shown to have been Wilson's. 

Chief Justice Marshall also held this view, so usual 

23 Van Buren's "Political Parties in the United States," pp. 
283-86, 291-93, 304. 
23 Quoted in "Johnson's Impeachment," Vol. II, p. 163. 



JUDICIARY TO THE CONSTITUTION 229 

in the early days of our country. In his famous speech 
in the Senate, in the case of Thomas Nash, he con- 
tended that the case was one for Executive and not 
for Judicial decision, and said that he 

admitted implicitly the division of powers stated by the 
gentleman from New York [Livingston?] and that it 
was the duty of each department to resist the encroach- 
ments of the others. 24 

Attorney-General Wirt in 1824 gave an opinion to 
the First Comptroller of the Treasury, in which much 
the same view was again asserted. The Commission- 
ers under the Treaty with Spain had awarded a sum 
of money to one Cathcart, but certain persons claim- 
ing to be his assignees filed a bill in the Circuit Court 
of the United States for the District of Columbia, 
and obtained an injunction forbidding the Federal of- 
ficials from paying over the money to any one but them. 
Under these circumstances, Wirt wrote : 

My opinion is that the judiciary can no more arrest 
the executive in the execution of a law, than they can 
arrest the legislature itself in passing the law. ... It is, 
therefore, in my opinion, essential to the government 
itself to assert, for the executive branch, this independent 
action. 

But at the same time he thought there were cases, 

and this was one, in which the Executive would do 

well to respect the opinion of the Judiciary, and he 

accordingly recommended forbearance until the Court 

24 Quoted in 5 Wheaton, Appendix, p. 15. 



230 THE RELATION OF THE 

fhould decide the question; but that the jurisdiction 
pi the Court should not be recognized by appearing to 
/the suit as parties. 25 

/ President Jackson's action is also well known. Not 
/ only did he refuse to aid in the execution of the judg- 
/ ment of the Supreme Court in Worcester v. Georgia, 26 
and the judgment thus remained of no effect, — but he 
vetoed the bank bill of 1832, on the ground that there 
was no constitutional power to create a bank, despite 
the fact that the Supreme Court had decided that the 
bank about to expire and proposed to be continued 
was constitutional. 27 Van Buren, who became Jack- 
son's successor as President, and who was a member 
of the Cabinet at this time, agreed with Jackson as 
to his powers, and remained of the same opinion many 
years later. 28 

President Buchanan's opinion is not altogether clear, 
though in one instance he asserted quite decidedly the 
views I have quoted from numbers of authorities. In 
his inaugural address, 29 when a decision in the Dred 

35 "Opinions of the Attorneys General," Vol. I, pp. 681-686. 
See also Taney's opinion in 1832 in the matter of the jewels of 
the Princess of Orange, ibid., Vol. II, pp. 482-493 and 496-99. 

28 6 Peters, p. 515. This seems to many a very ultra action on 
Jackson's part, but possibly it was partly based on the proba- 
bility that to execute the decree would lead to civil war. 

27 Webster argued against the action of the President in 1832, 
maintaining apparently that, as the chief purpose of the law was 
to continue the existing bank for a further period, and as the 
Supreme Court had decided the existing bank to be constitu- 
tional, the President had no rightful discretion to veto, because 
a bank was in his opinion unconstitutional. See my article on 
the "Relation of the Judiciary," etc., in American Law Reviezv, 
Vol. XIX (March- April, 1885), p. 196. 

28 Van Buren's "Political Parties," Caps. VI and VIII. 

29 Curtis's "Life," Vol. II, p. 189. 



JUDICIARY TO THE CONSTITUTION 231 

Scott case was awaited, he seems perhaps to have 
leaned rather strongly on the views of the Judicial 
Department, but this may possibly have been owing 
to an eager desire to see the slavery question settled, 
rather than to any belief in that Department's peculiar 
function to interpret. 

At a shortly later time, when President, he took quite 
a different view. Congress had passed a law contain- 
ing an appropriation for the completion of the Wash- 
ington aqueduct, to be expended according to the plans 
and estimates of a certain officer (naming him), and 
under his superintendence. When the bill came to 
Buchanan for signature, he sent a special message 30 
to Congress, objecting to the above features as an in- 
fringement of his rights, and announcing that he 
should consider the naming of the particular officer by 
Congress merely as a recommendation. He then signed 
the bill, but did not appoint the officer named by Con- 
gress to the office in question. This officer thereupon 
sent a memorial to the Executive, objecting to his 
non-appointment in accordance with the terms of the 
Act, and Attorney-General Black wrote an opinion 
upon the case. 

Black was of opinion that, as commander-in-chief, 
it was the President's right to decide what officer 
should perform any particular duty, and that as su- 
preme executive magistrate, the President had the 
power of appointment. In continuation he said : 

Congress could not, if it would, take away from the 
President, or in any wise diminish the authority conferred 
80 Henry's "Messages of President Buchanan/' pp. 269-71. 



232 THE RELATION OF THE 

upon him by the Constitution. . . . Congress is vested 
with legislative power; the authority of the President is 
executive. Neither has a right to interfere with the func- 
tions of the other. Every law is to be carried out so far 
forth as is consistent with the Constitution, and no fur- 
ther. The sound part of it must be executed, and the 
vicious portion of it suffered to drop. 31 

Lincoln, also, of our Presidents, wrote very plainly 
to the same general effect in one instance, and I do not 
know of any opinion from him to the contrary. In 
his first inaugural, he expressed himself as follows, 
with evident reference to the Dred Scott decision : 

I do not forget the position assumed by some that con- 
stitutional questions are to be decided by the Supreme 
Court, nor do I deny that such decisions must be binding 
upon the parties to that suit : while they are also entitled 
to very high respect and consideration in all parallel cases 
by all the departments of the government. . . . [But the 
candid citizen must confess that] if the policy of the 
government upon the vital questions affecting the whole 
people is to be irrevocably fixed by the decisions of the 
Supreme Court, the moment they are made, as in ordinary 
cases between parties in personal actions, the people will 
have ceased to be their own masters, having to that extent 
resigned their government into the hands of that eminent 
tribunal. 

81 "Opinions of the Attorneys General," Vol. IX, pp. 463-75. 
About twenty years later (1882) a precisely like provision was 
inserted in the Sundry Civil Bill in relation to the proposed new 
Pension Building, but in this instance the bill was signed with- 
out objection and the officer indicated in the act was appointed. 



JUDICIARY TO THE CONSTITUTION 233 

But the contest between Johnson and the leaders 
of the majority in Congress, after the Civil War, is the 
instance in our history in which the question we are 
concerned with met with the most elaborate considera- 
tion. Congress had passed a law on March 3, 1865, 
which was approved by Lincoln, providing that assist- 
ant assessors of internal revenue should be appointed 
by the assessors, and repealing all laws inconsistent 
therewith. Such assessors had theretofore been ap- 
pointed by the Secretary of the Treasury, under the 
Act of June 30, 1864. 

When Johnson came into office after Lincoln's death, 
he evidently wanted to make these appointments, but 
the Act of March 3, 1865, seemed to stand in the way. 
Attorney-General Speed thereupon gave it as his opin- 
ion that the attempt by that statute to vest the appoint- 
ment in the assessors was clearly unconstitutional, and 
that as the former method of appointment by the Sec- 
retary of the Treasury, under the Act of June 30, 1864, 
was repealed by the Act of 1865, there was no statute 
in effect providing a method for their appointment. 
Speed was of opinion that the assistant assessors were 
"officers," within the meaning of clause 2, section 2 
of Article II of the Constitution, and that the right of 
appointing them hence devolved upon the President. 
He adds that the right should be exercised by him, 
despite the fact that by the Act of 1865 Congress had 
distinctly declared their will to be that he should not 
appoint the assistant assessors. 

It is to be noted, however, that the course of action 



234 THE RELATION OF THE 

advised by Speed was apparently intended by him to 
lead up to a judicial decision of the question, in a con- 
test between an appointee of the President and one 
appointed by the assessor under the provisions of the 
Act of 1865. It seems, therefore, that while Speed 
did not hold that the President must slavishly enforce 
all statutes on the book, he yet took a view of the chief 
question far removed from that hereinbefore quoted 
from a number of earlier authorities. 

As the partisan contest between Johnson and the 
leaders opposed to him went on, the quarrel grew more 
and more bitter, until at length, after Johnson had 
refused to obey some of the utterly unjustifiable and 
even revolutionary statutes driven through Congress 
over his veto by the majority leaders, still flaming with 
the passions of the Civil War and absolutely deter- 
mined to rute, they brought into the House articles of 
impeachment against him. The chief issues involved in 
the trial before the Senate grew out of laws which 
Johnson held to have infringed his constitutional right 
to command the army and his right to remove from 
office. 

The constitutional right of the President to adhere 
to his understanding of the language of the Constitu- 
tion, and to necessary inference therefrom in regard 
to his powers, and to refuse to obey a statute taking 
such powers from him, was the subject of wide dis- 
cussion; and the right to refuse to obey was claimed 
for him, in a greater or less degree, by every one of 
his counsel and by several of the Senators who voted 



JUDICIARY TO THE CONSTITUTION 235 

for acquittal. 32 Again here, as in the case of Speed's 
opinion, much was said by counsel and others, of the 
refusal to obey being a step leading up to a judicial 
decision; but it may probably be supposed that this 
grew largely out of the tact of the advocate who does 
not want in matters of difficulty to claim more than 
the needs of his case require. Johnson had, moreover, 
throughout the contest maintained that his course was 
based on that idea. 

It was during the same memorable quarrel between 
Congress and President Johnson that Gideon Welles 
had a conversation with Grant, who had recently been 
appointed Secretary of War, which is noteworthy and 
may even show how the ancient belief was possibly 
at that time being substituted by the new. Welles 
spoke of the differences between Congress and the 
President, and records that he was pained to see how 
little Grant knew of the Constitution and our Gov- 
ernment. Grant said of the "Reconstruction" law that 
Congress had enacted it, and the President must ex- 
ecute it. "If the law was unconstitutional," he said, 
"the judges alone could decide the question. The 
President must submit and obey Congress until the 
Supreme Court set the law aside." I asked him, so 

82 See, in the volumes of the Impeachment Trial, the arguments 
of Curtis, Vol. I, pp. 386-88; Nelson, Vol. II, pp. 160-68; Groes- 
beck, Vol. II, pp. 198-200; Evarts, Vol. II, pp. 292-97, 320-21; 
Stanbery, Vol. II, pp. 373-76, 382-83; and the opinions of Buck- 
alew, Vol. Ill, p. 232; Doolittle, ibid., p. 246; Henderson, ibid., 
pp. 303-04; Grimes, ibid., pp. 337-3%; Johnson, ibid., pp. 55-57J 
Vickers, ibid., p. 117; Davis, ibid., p. 170, 172-73, 176-77; Fowler, 
ibid., p. 207. Sumner and Patterson, also, admitted the Presi- 
dent's right to refuse to execute laws palpably violating the Con- 
stitution; ibid., pp. 273 and 312. 



236 THE RELATION OF THE 

Welles goes on, if Congress could exercise powers 
not granted, powers expressly reserved to the States, 
which made the Constitution. Grant replied that "Con- 
gress might pass any law, and the President and all 
others must obey and support it until the Supreme 
Court declared it unconstitutional." 33 

A few theoretical writers, — who have studied the 
question under the diffused light coming from all 
sources, and in its manifold relations,- — may also be 
cited here. Still more holding distinctly the same 
view could be found, and at the same time many others, 
who hold much the same confused opinions which 
Welles gives us from a great soldier. Bancroft, who 
had studied our history from its beginnings, and had 
written on the Constitution itself, evidently by no 
means accepted the belief in Judicial Finality. Towards 
the end of his long life, he wrote: 

The decision of that court in all cases within its juris- 
diction is final between the parties to the suit and must 
be carried into effect by the proper officers; but, as an 
interpretation of the constitution, it does not bind the 
President or the Legislature of the United States. . . . 
[After referring to the fact that the irreversibility of 
their decisions attaches only to the parties to the suit, 
and that society submits in order to escape from daily 
anarchy] : To the decision of an underlying question of 
constitutional law, no such finality attaches. To endure 
it must be right. If it is right, it will approve itself to 

33 'The Diary of Gideon Welles," Vol. Ill, pp. 176-180, cited 
in Andrew C. McLaughlin's "The Courts, The Constitution, and 
the People, ,, pp. 59-60. 



JUDICIARY TO THE CONSTITUTION 237 

the universal sense of the impartial. . . . An act of the 
Legislature at variance with the constitution is pro- 
nounced void ; an opinion of the Supreme Court at vari- 
ance with the constitution is equally so. 34 

Professor Thayer, too, of Harvard, wrote, in words 
that sum up clearly enough the reason for the origin of 
our Courts' action, yet at the same time words that do 
not at all recognize their conclusive effect on all the 
world : 

Again, where the power of the judiciary did have 
place, its whole scope was this ; namely, to determine, for 
the mere purpose of deciding a litigated question prop- 
erly submitted to the court, whether a particular disputed 
exercise of power was forbidden by the constitution. 35 

Finally, Professor McLaughlin, of the University 
of Chicago, writing as late as 1912, by no means ac- 
cepts the doctrine of Judicial Supremacy. On the con- 
trary, he is of opinion that the Courts have no special 
powers in the matter, and are "only exercising their 
freedom within their own province' ' when they hold 
a law unconstitutional. At the same time, he writes : 

Possibly American constitutional law has grown away 
from its early conditions ; the principle of separation and 
of judicial independence, not judicial superiority, was 
beyond question distinctly put forth by the judges in the 
early cases, and on that basis the courts did, as a his- 

84 "History of the Constitution," Vol. II, pp. 198, 202, 203. 

85 "American Doctrine of Constitutional Law," in Harvard Law 
Review, Vol. VII, p. 9. 



238 THE RELATION OF THE 

torical fact, act and assume authority to deny the validity 
of legislation, 36 

And he recognizes fully the view that these pages 
have shown was held by so many of our earlier leaders, 
and even the right of the President to refuse to be 
bound by an unconstitutional Act of Congress. 37 

From all that precedes, it is amply apparent that 
Judicial Supremacy had no place in the beliefs of the 
Founders and of their successors, for a number of 
years. The Judiciary was at that time far too weak 
to make such a claim, and would merely have brought 
ridicule on itself by so doing. Nor did any one else, 
so far as I know, make the claim on their behalf. In- 
deed, they felt most strongly the need of showing 
some foundation for their mere action in declining to 
enforce a statute, and they largely found their jus- 
tification in- insisting that, under our written Constitu- 
tions, they were a coordinate Department. 

What was to be the indirect result of their action in 
a long course of years they did not discuss and prob- 
ably did not consider. Men rarely do look far ahead, 
for the simple reason that, owing to their limitations, 
they cannot do so. The Courts in those early cases 
merely decided that, as they were one of the great co- 
ordinate branches of Government, with functions as 
clearly set forth by the written Constitution as were 
those of the Legislature or the Executive, they must 

38 Andrew C. McLaughlin's "The Courts, The Constitution, 
and The People," pp. 62 et seq. See Chapter III generally for the 
history of the matter and the author's general opinion. 

37 Ibid., p. 62, footnote. 



JUDICIARY TO THE CONSTITUTION 239 

exercise the powers confided to them, and could not be 
called upon, against their clear convictions, to aid in 
carrying out a law of Congress which they held to be a 
plain violation of the fundamental instrument. They 
would probably have equally conceded the same right 
to the other Departments, when these were in turn 
called upon to assist the Judiciary. Such was, at least, 
the necessary result of their arguments to justify their 
own action. 

That all this has perhaps been immensely changed 
in the years that have elapsed since our beginnings, is 
too plain for discussion, let alone for doubt. Possibly 
our historical growth in the matter has gone so far 
as to justify the use of the term "Judicial Supremacy/' 
Some think so, and not a few would probably even 
accept the opinions which Grant expressed to Welles. 
But constitutional doctrines deriving their origin in 
such a manner, by very slow growth against a view 
generally accepted at an earlier date, and against what 
seems surely to be the true theory of the matter, are al- 
ways nebulous for many, many years, 38 and may even 
be rejected at a very late date. 

In relation, then, to the question of what is the true 

doctrine of Judicial Power in our country, there is 

38 As late as 185 1 Disraeli thought that the veto of the Crown 
had not lapsed by disuse, but that an occasion might arise "when, 
supported by the sympathies of a loyal people, its exercise might 
defeat an unconstitutional Ministry and a corrupt Parliament. ,, 
"Life," by Monypenny and Buckle, Vol. Ill, p. 321. The ques- 
tion, too, of the circumstances under which the Lords were con- 
stitutionally obliged to yield to the insistence of the Commons 
upon a special measure, though it was widely asserted that there 
was such an obligation, was never settled until the statute of a 
few years ago. 



240 THE RELATION OF THE 

certainly still the gravest doubt. Many hold that the 
decrees of the Judiciary are absolutely final, and must 
be accepted by all, — Departments of Government, as 
well as individuals ; but not a few writers are still to be 
found, who deny any such conclusion, and in a number 
of instances, down to within about half a century, lead- 
ing officials have spoken and even officially acted 
against it. And very recently quite a school has sprung 
up, which denies not only Supremacy to Judicial deci- 
sions, but denies even their right to hold any law un- 
constitutional, — at least, any law passed by Congress. 
It still remains to the future to show whether grad- 
ual historical growth has established the doctrine of 
Judicial Supremacy in our country, or whether, with 
the immensely grown power of our Executive, and per- 
haps under the inducements of the terrible death-strug- 
gle now prevailing throughout the world, the older doc- 
trine will not yet crop up again, and the essential weak- 
ness of the Judiciary result in a complete denial to them 
of any Supremacy, or even the occasional refusal to 
allow the enforcement of specific decrees entered by 
them. 



INDEX 



Adams, John, 49, 52, 56, 193, 
196. 

Adams, Sam, quoted, 166. 

Adams's "Gallatin," cited, 213. 

Alien and Sedition Acts, 219. 

"American Colonial Govern- 
ment," Oliver Morton Dick- 
erson, cited, 20, 23, 26, 104. 

American Doctrine, The, 9 et 
seq., 46, 134 et seq. 

"American Doctrine, The." See 
Thayer. 

"American Doctrine of Judicial 
Supremacy, The," Charles 
Grove Haines, cited, 35, 46, 
208. 

American Historical Review, 
40, 60, 61, 135, 174, 179, foot- 
notes. 

"American Judiciary, The." 
See Baldwin. 

American Law Review, 7, 8, 
12, 60, 75, 174, 194, 223, 230, 
footnotes. 

American Political Science Re- 
view, . 12, 74, 128, 148, foot- 
notes. 

American Quarterly Review, 
194, 218, footnotes. 

"American State papers, Misc.," 
cited, 178. 

"Annulment of Legislation." 
See Horace A. Davis. 

"AThantom Precedent," cited, 
60. 



"Appeals from Colonial Courts 
to the King in Council" etc., 
Harold D. Hazeltine, 24, 
footnote. 

Appleton's Dictionary, cited, 72. 

Argentina, 12. 

Aristides. See Hanson. 

Ashe, Judge, 113. 

Aurora, quoted, 182, 216. 

Austin v. Trustees, 176. 

Australia, 12. 

Bacon's "Abridgment," 57. 

Bahamas, 22. 

Baldwin, Simeon E., cited, 168, 

185, 203; quoted, 209. 
Bancroft, George, quoted, 236, 

237- 

Bank of the United States, 173. 

Bassett, 136, 171. 

Batchellor, Albert S., 75, foot- 
note. 

Battle's "Address on the His- 
tory of the Supreme Court," 
cited, 114, 120, 217. 

Bayard v. Singleton, 101-123, 
129, 133, 176. 

Beard, Professor, 148, foot- 
note. 

Beatty, Major, yy. 

Benson, Egbert, 86. 

Benton's "Abridgment," cited, 

194, 219. 
Bidwell, 68. 
Bismark, 207. 



241 



242 



INDEX 



Black, Attorney- General, 231 ; 

quoted, 232. 
Blair, Chancellor, 64, i8<). 
Bland, 51. 
Blount, 149. 
Bolivia, 12. 

Bonham's case, 31 et seq., 57. 
Boudinot, Elias, cited, 62; 173. 
Bowman v. Middleton, 175. 
Brearly, David, 62, 134, 135. 
Breckenridge, 193. 
Brevard, cited, 218. 
British Colonies in America, 15 

et seq. 
Brodhead, John R., "History 

of New York," cited, 41. 
"Brutus." See Yates. 
Buchanan, James, 230, 231. 
Buckalew^ 235, footnote. 
Burney, cited, 202. 
Burr, Aaron, 228. 
Butler, Pierce, 160. 

Calhoun, 154, 156. 

Call's Reports, cited, 168. 

"Camden," 182. 

Campbell, 187. 

Campbell's "Life of Broug- 
ham," cited, 214. 

Canada, 12. 

Carpenter, Prof. William S., 
cited, 116, 206. 

"Centinel," 164. 

Chalmers, George, cited, 37, 41. 

Chase, Judge, cited, 161 ; quot- 
ed, 188, 189, 190, 192, 215. 

"Chronicles of Pennsylvania," 
Charles P. Keith, cited, 28. 

Circuit Courts, 178 et seq. 

City of London v. Wood, 
cited, 32. 

Coke, Lord, 31 et seq., 39; doc- 
trine of, 48 et seq., 89, 102, 
footnote, 103. 

Colden, Gov. Cadwallader, 
quoted, 25, 42. 



1 "Colonial Appeals, to the Privy 
Council," Arthur Meier 
Schlesinger, cited, 23. 

"Colonial Government." See 
Dickerson. 

Commonwealth v. Caton, 63, 

Commonwealth v. Mann, 202. 

Comyns' Digest, 57. 

Confiscation Acts, 108 et seq. 

Congressional Record, cited, 
206. 

Connecticut, 68, 94, 99, 122, 
132; 136, 167, 171, 177, 186, 
193.. 

Constitutional Convention. See 
Federal Convention. 

Conway's "Randolph," cited, 
127. 

Cooley, 7. 

Cooper v. Telfair, 190 et seq. 

Corwin, Edward S., cited, 60, 
67, 182, 185, 188. 

Council of Censors, 67. 

"Courts, the Constitution, and 
the People, The." See 
McLaughlin. 

Coxe, Brinton ("Judicial Pow- 
er and Unconstitutional Leg- 
islation"), 8, 9; cited, 24, 
70, 71, 72; quoted, 97; in, 
118, 120, 133, 147, 148, 

"Critical Period, The," 80 et 
seq. 

Cuba, 12. 

Curtis, 235, footnote. 

Curtis's "Life of Buchanan," 
cited, 130. 

Gushing, John, 55, quoted, 56, 
footnote. 

Gushing, William, 56, 191, 
192. 

Dallas, A. J., cited, 178, 179, 
184, 185, 187, 188, 190, 191. 

Dana, quoted, 188, footnote; 
193. 



INDEX 



243 



Davie, William R., 114, 115, 
116, 118, 119, 120, 148, 168. 

Davis, Andrew McR, 40, foot- 
note. 

Davis, Horace A., cited, 65, 
171, 172, ("Annulment of 
Legislation"), 235. 

Davis, Warren R., cited, 172. 

Dawson, Henry B., 83, 91. 

Declaration of Independence, 
28. 

Delaware, 63, 99, 137, 168, 193. 

"Diary of Gideon Welles, The/' 
cited, 235, 236. 

Dickerson, Oliver Morton, 20, 

23,. 26, 37, 39, 75, 104. 
Dickinson, Governor, 136, 168. 
Disraeli, quoted, 239. 
"Doctrine of Judicial Review." 

See Corwin. 
Dodd, Walter R, cited, 174. 
Doolittle, Judge, 235, footnote. 
Dred Scott decision, 231, 232. 
Duane, 178, footnote. 
Dudley, Governor, 47, footnote. 
Duguit, Professor, 13, footnote. 

Eakin v. Raub, 194, footnote; 

203. 
Edelen, T. L., j6 y footnote. 
"Elector." See Iredell. 
Elliot's "Debates," cited, 65, 81, 

127, 135, 150, 153, 166, 167, 

168. 
Ellsworth, Oliver, 92, 134, 136, 

138, 148; quoted, 167, 172. 
Emerick v. Harris, 202. 
"English Common Law in the 

Early American Colonies," 

Paul Samuel Reinsch, cited, 

38, 102. 
Evarts, cited, 235. 

Farrand, Prof. Max, cited, 127- 
132, 134, 136-139, 142, 143, 



145, 149, 150, 160, 164, 167, 

179, 181, 185. 
Federal Convention, 7, 10, 11, 

62, 80, 101, 108-123, 213. 
Federalist, The, 51, 152, 158, 

162, 163, 171, 223. 
Few, 149, 171. 
Filson Club, 77 t footnote. 
Finch, cited, 38. 
Finland, 12. 

Flanders, Henry, cited, 171. 
Force Bill, 155. 
Ford, Paul Leicester, 94, 99, 

161, 162, footnotes. 
Fowler, Judge, 235, footnote. 
France, 13, footnote. 
Freneau, 182. 
Frost v. Leighton, 40. 

Garner, Prof. James W., 
quoted, 12, 13. 

Genet, Edmund Charles, 185. 

Georgia, 132, 168, 203. 

German Empire, 207. 

Germans, 205. 

Gerry, Elbridge, 129, 132, 133, 
136, 148; quoted, 161. 

Gibson, Judge, 194, footnote; 
203. 

Giddings v. Brown, 38. 

Girardin's "Virginia," 60, foot- 
note. 

jlenn, Thomas Allan, 135, foot- 
note. 

Goodell, A. C, Jr., 96, foot- 
note. 

Grant, U. S., quoted, 235, 236, 

239. 
Gray, Justice, cited, 49, 56, 57. 
Grayson, 168. 
Great Britain, 19, 40. See also 

British Colonies and Treaty 

of Peace. 
Grimes, 235, footnote. 
Griswold, 193. 
Groesbeck, 235, footnote. 



244 



INDEX 



"Growth of the Constitution." 
See Meigs. 

Haines, Charles Grove, cited, 
35, 46. 

Hallam's "Constitutional His- 
tory of England," cited, 214. 

Halstead, 176, footnote. 

Ham v. McClaws, 168 et seq., 

175. 

Hamilton, Alexander, quoted, 
86, 92, 148, 151, 152, 154, 
158; quoted, 163; 168, 187; 
quoted, 223. 

Hamilton, J. C, cited, 86. 

Hanson, Alexander Contee, 160, 
quoted, 161. 

Hardaway, Bland v., 51, foot- 
note. 

Harris and Johnson, cited, 176. 

Harvard Law Review, 96, 203, 
footnotes. 

Hawkins, 92. 

Hayburn case, The, 178 et seq. 

Haywood, cited, 176. 

Hazeltine, Harjold D., "Appeals 
from Colonial Courts to the 
King in Council," cited, 24. 

Hemphill, 193; quoted, 194. 

Henderson, 193; quoted, 194, 

235. 

Henry, Patrick, quoted, 168. 

Henry's "Messages of Presi- 
dent Buchanan," cited, 232. 

"Historical Collections of the 
American Colonial Church," 
Stevens, cited, 43. 

"History of the Constitution." 
See Bancroft. 

"History of the Revolt of the 
American Colonies." See 
Chalmers. 

Hohenzollerns, 207. 

Holmes v. Walton, 61, 62, 63, 
72, 96, 135, 176, 186, 201. 

Hopkinson, Edward, 194, foot- 
note. 



Hopkinson, Judge, 218. 
Houston, William Churchill, 

cited, 135. 
Hutchinson, Judge, 55, 56. 
Hylton v. United States, 187, 

et seq. 

Identical Law, The, 97, foot- 
note ; 108, 148 et seq. 

Ingersoll, Charles Jared, 176, 
187, 191, 194, 203, footnote. 

Iredell, James, 101 et seq., 118, 
120; quoted, 153; 154, 168; 
quoted, 215. 

Izard, Mr. 92. 

Jackson, Andrew, 205, 223, 230, 

233. 

Jefferson, Thomas, 60, foot- 
note; quoted, 94, 95, 96; 126, 
223; quoted, 228. 

Johnson, Andrew, 223, 225. 

Johnson, Dr., 113, 136, 146, 149. 

"Judicial Bulwark of the Con- 
stitution, The." See Melvin. 

"Judicial Control of the Ad- 
ministrative and Legislative 
Acts in France." See Gar- 
ner. 

Judicial Method, The, 151 et 
seq. 

"Judicial Power and Unconsti- 
tutional Legislation," See 
Coxe. 

"Judicial Tenure in the United 
States." See Carpenter. 

Judiciary Act of September 24, 
1789, The, 170, 194. 

Kamper v. Hawkins, 169, 175, 

218. 
Keith, Charles P., "Chronicles 

of Pennsylvania, 1688- 1748," 

cited, 28. 
Kelby, Mr., 78, footnote. 



INDEX 



245 



Kent's "Commentaries, " quoted, 

198. 
Kentucky, 76 et seq., 177, 193, 

203. 
King, 149. 

King in Council, 18 ei seq., 173. 
Kirby's Reports, cited, 68. 

Law of Nations, 87. 

Lecky's "England," cited, 213. 

"Lectures on Law." See Wil- 
son. 

Lee, Charles, 187, 196. 

Leighton. See Frost. 

Leisler, 41. 

Lewis, Morgan, 86. 

"Life of Calhoun." See Meigs. 

Lincoln, Abraham, 223 ; quoted, 
232, 233. 

"Lives and Times of the Chief 
Justices." See Flanders. 

Livingston, 62, 86, 135, 229. 

Locke, John, 70. 

Lords of Trade and Planta- 
tions, 18 et seq. 

Madison, James, 81, 126, 127, 
128, 131; quoted, 137-138, 141, 
143-146, passim; 148-150, 154, 
158, 192, 196, 197; quoted, 219, 
223; quoted, 225, 226, 228. 

Maine, Sir Henry, quoted, 221. 

Mansfield, Lord, 87, footnote. 

Marbury v. Madison, 8, 192, 
I95> 196*, 201, 228. 

Marbury, William, 196 et seq. 

Marshall, John, quoted, 153; 
154, 167, 192, 197, 198; quot- 
ed, 199-201 ; 228 ; quoted, 229. 

Marshall's "Washington," cited, 
185. 

Martin, Luther, 132, 134, 136, 
137, 138, 139, 140; 148, foot- 
note; 161, footnote; quoted, 
163, 164. 



Maryland, 99, 136, 160, 176, 193. 
Mason, George, 50, 132, 136, 

139 140, 148. 
Mason, Jeremiah, 73. 
vlason, Stevens T., 193 ; quoted, 

219. 
Massachusetts, 21, 23, 33, 34, 98, 

166, 193. 
May's "Constitutional History 

of England," 215. 
McClary, Elizabeth, 173. 
McClary v. Gilman, 74. 
McKean, 165. 
McLaughlin, Andrew C, cited, 

54, 236; quoted, 237-238. 
McMaster, Professor ("The 

United States"), cited, 54, 71, 

72, 213. 
McRee's "Iredell," 120-121. 
Meader, L. H., 67, footnote. 
Meigs, William M., cited, 7, 9, 

12, 143, 155, 174, 194, 223, 

230. 
Melvin, Frank E., cited, 66, 74, 

97, 128, 136, 148, 149, 168, 

170, 171. 
Menges v. Wertmann, 203. 
Mexico, 12. 
Monroe, 222 et seq. 
Moore, Alfred, 113. 
Moore, B. F., cited, 202. 
Morris, Gouverneur, 63, 72, 

144; 148, footnote; 193. 
"Mother of Parliaments," 12. 
Murphy, cited, 176. 

Nash, Abner, 113. 

Nash, Thomas, 235, footnote. 

National Gazette, 182. 

New Hampshire, 23, 73 et seq., 

149, 177. 
New Jersey, 21, 23, 61. 63, 99, 

122, 132, 134, 136, 137, 176, 

177. 
New Jersey Plan, The, 136 et 

seq., 141. 



246 



INDEX 



"New Jersey Precedent, The," 
See Austin Scott. 

New York, 21, 67 et seq., S3, 
99, 122, 137, 166, 168, 177, 
178, 193. 

"New York Colonial Docu- 
ments," 25, footnote. 

New York Packet and the 
American Advertiser, The, 
91, footnote. 

New Zealand, 12. 

Norris v. Clymer, 203, footnote. 

Northy, Attorney-General, 104. 

North Carolina, 21, 22, 26, 99, 
108, in, 120, 122, 168, 176, 
177, 193, 217, footnote. 

Nullification, 155. 

"Observations." See Gerry. 
Ogden v. Witherspoon, 176. 
Ohio, 203. 
/'Opinions of the Attorneys 

General," cited, 230, 232. 
Otis, James, 49; quoted, 50. 

Page v. Pendleton, 175. 

Paterson, Wilfiam, 62, 135, 171 ; 
quoted, 186, 187. 

Patterson, 235, footnote. 

Pendleton, Judge, quoted, 65; 
168. 

Pennsylvania, 18, 23, 65, 66, 176, 
177, 180, 185, 186, 202, 227. 

"Pennsylvania and the Federal 
Convention," McMaster and 
Stone, cited, 227. 

Pennsylvania Magazine of His- 
tory and Biography, 67, foot- 
note. 

Pennsylvania Packet and Daily 
Advertiser, 113; quoted, 116; 
216, footnotes. 

Pension Cases, 216. 

Pension Laws, 192. 

Pensions, 178. 

Perry, William Stevens, cited, 
39, 43. 



Peters, Judge, 180; cited, 230. 

Philips, Josiah, 60. 

Pierce, 149. 

Pinckney, Charles, 136. 

Pinckney, C. C, 168. 

Pinckney's Plan, 14. 

Pirtle, Alfred, y6, footnote. 

Plumer, William, 73, 74, 75, 
footnotes. 

Plumer's "Life of William 
Plumer," cited, 174. 

Political Club, The, 76 et seq. 

Political Science Quarterly, 23, 
footnote. 

Pratt, 43, 104, footnotes. 

Princess of Orange, 230, foot- 
note. 

Quieting and Confirming Act, 
109 et seq., 186. 

Randolph, Edmund, 127, 130, 
148, footnote; 151, footnote; 
168, 184. 

Randolph Plan, The, 137. 

Ratifying Conventions, 158-169. 

"Records." See Farrand. 

Reed, 136. 

Reinsch, Paul Samuel, cited, 38, 
102. 

"Relation of the Judiciary to 
the Constitution." See Meigs. 

"Remarks to the People of 
Maryland." See Hanson. 

"Representation and Sectional- 
ism in South Carolina." See 
Schaper. 

Respublica v. Duguet, 176. 

Respublica v. Gordon, 95, foot- 
note. 

"Review of American Colonial 
Legislation." See Russell. 

Rhode Island, 23, 70, 94. 99, 
104, 122, 149,. 177. 

"Rights of British Colonies As- 
serted and Proved," James 
Otis, cited, 50. 



INDEX 



247 



Rives, W. C, 150, footnote. 

Robin v. Hardaway, 51, foot- 
note. 

Ross, 193. 

Rousseau, 30. 

Rumania, 12. 

Russell, Elmer Beecher, 20-23, 
25, 27, 39, 44, 47, footnotes. 

"Rutgers College Publications,'' 
footnote. 

Rutgers v. Waddington, 67, 68, 
71, 73, 80 et seq., 119, 122, 
143, 202. 

Rutledge, 145,. 168, J 93- 

Schaper, William A., cited, 45. 

Schlesinger, Arthur Meier 
("Colonial Appeals to the 
Privy Council"), cited, 23, 41. 

Schouler's "United States," 
cited, 213. 

Scott, Prof. Austin. 61, 72, 

135. 

Sergeant and Rawle, cited, 203. 

Sharswood, George, 184, foot- 
note. 

Sherman, 136, 148, footnote. 

Smith, Melancthon, quoted, 166. 

"Some Recent Attacks on the 
American Doctrine of Judi- 
cial Power." See Meigs. 

South African Republic, 12. 

South Carolina, 44, 132, 136, 
160, 168, 169, 175, 177, 193, 
203, 218. 

Spaight, Richard Dobbs, 117; 
quoted, 120. 

Sparks's "Life of Gouverneur 
Morris," 72, footnote. 

Speed, Miss Mary, 76, 77, 
footnotes. 

Speed, Thomas, 76, footnote. 
233, 234. 

Spencer, Judge, 113, 114. 

Stamp Act, 51, 52 et seq., 103. 

Stanbery, 235, footnote. 



Stanley, 193. 

State Rights, 155, footnote. 

State v. Parkhurst, 61, foot- 
note; 176. 

Statutes at Large of Pennsyl- 
vania, cited, 43. 

Steele, 168. 

Stidger v. Rogers, 77, 177- 

Stockdale v. Hansard, 214. 

Stone, 193. 

Story's "Statutes of the United 

^ States," cited, 178. 

Strong, 171. 

Sumner, Charles, 235, footnote. 

"Supreme Court and the Con- 
stitution," See Beard. 

"Supreme Court and Unconsti- 
tutional Legislation, The." 
See Moore. 

Symmes, Judge, 62, footnote. 

Symonds, Magistrate, 38. 

Symsbury Case, The, 68 et 
seq. 

Talbot, 39, footnote; 42, 104, 

footnote. 
Taney, Roger B., 184; cited, 

230. 
Taylor V. Reading, 176. 
Thayer, Prof. J. B., 185, 203, 

237. 
Tilghman, E., quoted, 191. 
Todd, Thomas, 77, 78. 
Todd, Yale, 184 et seq. 
Tories, 108, 109, 126. 
Tracy, 193. 
Treaty of Peace with Great 

Britain, 83, 84, 87, 92, 96, 

108, 126. 
Trent, William P., 60, footnote. 
Trevett v. Weeden, 63, 70, 71, 

73, 96, 118, 119, 149, 202. 
Trist, N. P., quoted, 150. 
Tucker's "Blackstone," cited, 

173. 
Turner v. Turner, 175. 



248 



INDEX 



United States v. Ferreira, cit- 
ed, 185. 

United States v. Foy, 176. 

United States v. Yale Todd, 
cited, 185; 187. 

United States v. Villato, 186. 

University of Illinois, 12. 

Usher, Lieutenant-Governor, 
147, footnote. 

Van Buren, 223, 230. 

Van Buren's "Political Parties 

in the United States," cited, 

228, 230. 
Van Home's Lessee v. Dor- 

rance, 185 et seq. 
Varick, Richard, 87. 
Varnum, J. M., 63, 70, 71, 72, 

97, 118, 149. 
Vattel, 70, 118. 
Venezuela, 12. 
Vermont, 193. 

Vickers, Judge, 235, footnote. 
Viner's Abridgment, 57. 
Virginia, 23,. 26, 60, 63, 126, 

136, 168, 175, 177, 187, 

193. 
Virginia Resolutions, 129. 



Washington, George, 185. 
Wason v. Walter, cited, 214. 
Webster, Daniel, 73, cited, 230. 
Welles, Gideon, quoted, 235- 

237; 239. 
W'es'tem Law Monthly, 203, 

footnote. 
Wheaton, cited, 229. 
Whitaker, Judge, 44, 45. 
White v. Kendrick, 175, 218. 
Whittington v. Polk, 176, 177. 
Willcocks, William, 62, foot- 
note. 
Williams, 113, 166; quoted, 167. 
Wilson, James, 139, 141, 148; 

quoted, 165; 173, 180; quoted, 

226, 227. 
Wirt, William, quoted, 229. 
Worcester v. Georgia, 230. 
"Writs of Assistance," Justice 

Gray, cited, 56, 57. 
Wythe, Judge, quoted, 64, 153, 

footnote. 

Yates, Robert, quoted, 162. 
Yeates, cited, 176. 
Yorke, Judge, 39, footnote; 42, 
43, 104. 



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